> rclinton@lawnet-po.law.uiowa.edu (Robert N. Clinton) writes:
>> 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...
>> 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...
>
> ---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)
I was NOT suggesting that Wakinyan Chikala's fears were misguided, only
that the fears of those who are concerned about including terminated and
other nonrecognized tribes were misguided. Sorry for the confusion.
NAFERA not only requires consultation and notice, but it contains a
private cause of action that can be filed by any Indian or Indian tribe to
force federal and state agencies to comply with the need to find a
compelling governmental interest (a very hard test to satisfy and
precisely the one used by the courts in race discrimination cases) before
they destroy a sacred site or to demonstrate that they have followed the
least restrictive alternative (i.e. that there are no other possibilities
for accomplishing the governmental interest) before they adversely affect
sacred sites or access thereto for Native Americans. The "teeth" in
NAFERA comes in the ability of any tribal member or tribe adversely
affected by governmental action to sue in federal court to enforce these
high standards, something that was totally lacking in AIRFA.
While I too dismay at the hostile reaction of the United States Supreme
Court to Indian cases over the past decade or so, I am certainly not any
more trustful of international or other sources of law to solve important
human rights problems. While I believe in and think important the
Universal Draft Declaration on Indigenous Rights or International Labour
Organization Convention 169 on the treatment of indigenous populations, I
am NOT a true believer in the ability of international law BY ITSELF to
protect human rights. Rather, it is a tool by which in appropriate
circumstances domestic law can be altered or swayed through persuasion.
Thus, international and domestic law are not alternatives, but
complementary approaches. It is not hard to see on the world scene today
why international law by itself is not a salvation. Ask the people of
Bosnia and in particular its Muslim population how effective international
law has been in protecting either their religious liberties or their human
rights. International law works only so well as domestic law seeks to
enforce it and other countries seek to respond to violations. It is NOT,
as it is often portrayed in Indian communities, a self-executing
alterative path to some vision of a just society for Indians, as much as
one might romantically like it to be.
[ One might also ask this question of the people of Tibet, whose
religious freedom slipped yet another notch at the hands of the
Chinese just yesterday (source: BBC World Service news) --Gary ]
The one other reason I am more hopeful about NAFERA which still must be
enforced in domestic courts is that the current Supreme Court has shown a
strong willingness to follow Congressional directives in Indian and other
fields even when their predilections might have been to go in other
directions. For example, the strong enforcement of the Indian Child
Welfare Act in the Holyfield decision in 1987(?) is a good example. Thus,
while Indian relgion cases prior to enactment of NAFERA only asked the
courts to determine what they thought the religion clause of the
Constitution meant in a context where they contained no reference to or
test for cases involving burdens on Indian religious practice, if NAFERA
is enacted its relatively clear language and heavy burdens of proof will
significantly circumscribe judicial decisionmaking.
Insofar as many might like absolute probitions, I only caution that those
are rare in law, although even NAFERA contains one preventing the
criminalization of the sacremental use of peyote. We outlaw slavery,
except on conviction of crime. We grant freedom of speech, but as Justice
Holmes reminded us, we still cannot shout fire in a crowded theatre or
divulge United States troop deployments or military plans in time of war.
We prohibit the establishment of relgion, yet permit legislative sessions
to begin with a prayer. In short, there are always exceptions of legal
prohibitions. The really important question often is not the one raised
by Wakinyan Chakala's request for absolutism, it is, rather, whether the
flexible test set is still relatively high and hard to satisfy before
exceptions are made. For its sacred sites provision, NAFERA adopts the
same compelling governmental interest and less restrictive alternative
tests utilized in other areas of suspect decisionmaking such as racial
discrimination. The standards employed in NAFERA are among the highest
standard employed by American constitutional law and therefore for
government to burden Indian relgious exercise if NAFERA were enacted would
require a very high and difficult to satisfy showing of proof.
The other point is about interferences with sacred sites located on
private property. Many nonlawyers are surprised to learn that
constitutional rights, including free speech and freedom of religion, are
only constitutionally guaranteed against governmental action (the
exception to this statement being the 13th amendment slavery guarantee).
That is why the First Amendment begins "Congress shall make no law . . ."
Accordingly, the protections of NAFERA are limited to enforcing the
constitutional guarantee against governmental action. As drafted NAFERA
applies to any federal state or local governmental interference with
sacred sites or peyote use or other interferences but applies only to
private action if the government somehow gets involved in support of that
private action through federal or state program assistance, permitting, or
the like. There is some constitutional question as to whether Congress
(as opposed to the states) could protect against purely private
interference with a sacred site located on private land owned by the
person engaged in the interference. Questions about both source and scope
of Congressional power to legislate and the taking of private property
without just compensation would emerge in this context. To avoid this
constitutional minefield and risk the statute's invalidation on
constitutional grounds, the NAFERA drafters chose a more limited
approach.
My understanding is that the Departments of Justice and Interior are about
to or already have proposed a much more modest alternative statute. My
understanding also is that since the September hearings Justice has
dropped its constitutional objections to having any statute on these
questions and is now trying to whittle the statute down and dilute it.
Frankly, I think NAFERA in its present form is not perfect but is likely
to be the best and most protective thing that could get through Congress.
Thus, in the world of realpolitik, I suspect NAFERA may be the best
alternative and a useful starting point. If problems emerge with NAFERA
after it enters into force, at least it can be tinkered with later, rather
than shooting for an all or nothing proposition and, as often happens,
getting nothing as a result.
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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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