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American Indian Religious Freedom Litigation: Promise and Perils

Published online by Cambridge University Press:  25 September 2015

Robert S. Michaelsen
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“It is my opinion,” testified the chairman of the Hopi Indian Tribal Council in the unsuccessful effort of the Hopi (and the Navajo) to stop further development of a ski resort on U.S. Forest Service land in the San Francisco Peaks in North Central Arizona,

that in the long run if the expansion is permitted, we will not be able successfully to teach our people that this is a sacred place. If the ski resort remains or is expanded, our people will not accept the view that this is the sacred Home of the Kachinas. The basis of our existence as a society will become a mere fairy tale to our people. If our people no longer possess this long-held belief and way of life… then it follows they will also no longer possess the entire Kachina belief. This will have a direct and negative impact upon our religious practices. The destruction of these practices will also destroy our present way of life and culture.

With such high stakes involved it is little wonder that the Hopi Indian Tribe resorted to the courts. Yet, such a step is a high risk venture. The immediate costs in terms of time, money, and emotional involvement are likely to be high. Further, every such investment involves the possibility of loss of the case and with it the additional possibility that the decisive language of the court may find its way into opinions in similar cases. Most importantly, perhaps, an attempt to defend a tribal religion in court could involve subtle longer range costs. Paradoxically, an effort to defend tribal religion may also undermine it.

Type
Articles
Information
Journal of Law and Religion , Volume 3 , Issue 1 , 1985 , pp. 47 - 76
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1985

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References

1. Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 371 (1983). Three suits were combined in Wilson: Hopi Indian Tribe v. Block, Navajo Medicine Men's Assn. v. Block, and Wilson. The Wilsons were non-Indian owners of land in the vicinity of the San Francisco Peaks. They appealed not to the free exercise clause but to federal environmental protection and similar laws.

2. Id. at 740, note 2. In Hopi belief, the Kachinas are spirit beings who are intermediaries between people and the creator. They live among the tribe for half of each year and in the San Franciso Peaks for the other half. They are responsible for bringing rain, snow, sun, health, happiness, and all of the good things of life to the people. Hence, their well-being is believed to be crucial to tribal well-being.

3. For example, in the Hopi case, not only was there a considerable investment of money and time, but it also appears that the Hopi loss in that case may have played a role in the failure of the chairman of the tribal council to win reelection. (Conversation with the former tribal chairman, Abbott Sekaquaptewa, at Second Mesa, Arizona, March 24, 1984.)

4. For example, in an earlier sacred site case involving efforts of two bands of the Cherokee Indian Nation and three individual Cherokees to prevent the completion of the Tellico Dam and flooding of the Little Tennessee Valley, Sequoyah v. T.V. A., 620 F.2d 1159 (6th Cir. 1980), cert. denied, 449 U.S. 953 (1980) [hereinafter cited as Sequoyah], the circuit court, failing to find evidence of the “centrality or indispensability” (at 1160, 1164) of the valley to Cherokee religion, denied the plaintiffs' free exercise claim. This language played a crucial role in subsequent Indian sacred site cases, including Wilson (708 F.2d at 742-45). See Stambor, , Manifest Destiny and American Indian Religious Freedom: Sequoyah, Badoni, and the Drowned Gods, 10 Am. Indian L. Rev. 59 (1982) [hereinafter cited as Stambor]CrossRefGoogle Scholar.

5. 708 F.2d at 744.

6. Deposition of Peter J. Pilles, Jr., The Hopi Indian Tribe v. John R. Block, 708 F.2d 735, Flagstaff, January 19, 1982, passim. One attorney who was involved in one of the cases reported in Wilson told me in confidence that in his opinion this Hopi secrecy may have undermined the efforts of the Hopi Indian Tribe and the Navajo Medicine Men's Association to prevent the expansion of the ski resort. Inasmuch as the court chose to understand the dispute as involving specific, discernible areas and not the San Francisco Peaks area as a whole, evidence was required on specific sites.

7. Subsequent to the loss of Wilson the Hopi (and to a lesser extent, the Navajo) may have achieved some consolation in the passage of the Arizona Wilderness Act of 1984 under which 18,000 acres in the San Francisco Peaks areas of the Coconino National Forest were designated as “the Kachina Peaks Wilderness.” P.L. 98-406. 98 Stat. 1485. Sec. 101.(a).(22).

8. The first amendment begins: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”

9. The right freely to engage in religiously and culturally based practices involving hair length, clothing, and ritual observances which differ from those of the majority, or are exceptions to rules in a controlled environment such as a prison or a public school, has been at issue in a considerable number of recent cases. Critical in most of these cases is the quality of the presentation of the litigants and the depth of understanding on the part of the factfinders of the intimate relationship between religion and daily life in traditional Indian culture. See, e.g., New Rider v. Bd. of Ed., 480 F.2d 693 (10th Cir. 1973), cert. denied, 414 U.S. 1097 (1973) (dismissal of suit alleging that school hair length regulation violated religious and other first amendment rights of Pawnee Indian students affirmed on grounds that no fundamental constitutional rights were involved); Hatch v. Goerke, 502 F.2d 1189 (10th Cir. 1974) (Indian parents' challenge of school hair code dismissed on grounds that hair length is not constitutionally protected); Teterud v. Burns, 385 F. Supp. 153 (S.D. Iowa 1974), aff'd, 522 F.2d 357 (8th Cir. 1975) (prison hair regulation unconstitutionally infringes upon Indian inmate's free exercise of religion right); Frank v. Alaska, 604 P.2d 1068 (1979) (court reverses conviction of Indian illegally hunting moose out of season for religious purposes). See Note, Native Americans and the Free Exercise Clause, 28 Hastings L. J. 1509 (1977)Google Scholar.

10. See Keller, R., American Protestantism and United States Indian Policy, 1869-82 (1983)Google Scholar; The Facts of History: The Denial of Indian Civil and Religious Rights, 8 The Indian Historian 43 (1975)Google Scholar; Washburn, W., The Assault on Indian Tribalism (1975)Google Scholar; and Indian Policy Since the 1880's, in Cadawalader, S. & Deloria, V. Jr., The Aggresssions of Civilization: Federal Indian Policy Since The 1880's 46 (1984)Google Scholar.

11. 25 U.S.C. §§ 1301-1303.

12. Id. at § 1302.

13. The legislative history of ICRA indicates that certain tribal actions which had limited the free exercise of religion of some tribal members were among the reasons which stimulated the Senate Subcommittee on Constitutional Rights to look into the matter of Indian civil rights. See S. Rep. No. 841, 90th Congress, 1st Sess. 9-10 (1967) and 113 CONG. Rec § 13,474 (May 23, 1967) (remarks of Senator Ervin). At the same time, it is also clear that the subcommittee made a deliberate choice to exclude the establishment clause out of respect for the theocratic traditions of some tribes. See Summary Report of Staff of Subcomm. on Constitutional Rights of The Senate Comm. on the Judiciary, 89th Cong., 2d Sess., at 21, 25 (Comm. Print 1965).

14. 436 U.S. 49 (1978).

15. Appeal to tribal courts on religious freedom issues is apparently not precluded. ICRA may be understood to have extended enforcement of the free exercise of religion to such courts. The extent to which they might adjudicate in accordance with federal court precedence would probably vary with the exact type and traditions of each court. On tribal courts see Deloria, V. Jr. & Lytle, C., American Indians, American Justice 110 (1983)Google Scholar. Deloria and Lytle also discuss “American Indian Religious Freedom” at 230.

16. Act of Aug. 11, 1978, Pub. L. No. 95-341, 92 Stat. 469 (1978) (codified in part at 42 U.S.C. § 1996).

17. 42 U.S.C. § 1996, emphasis supplied.

18. Pub. L. 95-341, Sec. 2.

19. Federal Agencies Task Force, American Indian Religious Freedom Act Report. Pub. L. 95-341 (Aug. 1979).

20. Indian Religious Freedom Issues. Hearings on S.J. Res. 102 Before the Subcomm. on Civil and Const. Rights of the Comm. on the Judiciary, 97th Cong., 2d Sess. at 11, 19 (June 10, 1982) [hereinafter cited as Indian Religious Freedom Issues].

21. People v. Woody, 40 Cal. 69, 394 P.2d 813 (1964) and State v. Whittingham, 19 Ariz. Ct. App. 27, 504 P.2d 950 (1973).

22. Whitehorn v. State, O. C, 561 P.2d 539 (1977).

23. Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975).

24. Frank v. Alaska, 604 P.2d 1068 (1979).

25. Oregon v. Soto, 537 P.2d 142 (Or. Ct. App. 1973). Soto, convicted for illegal possession of peyote, was denied a chance to establish his good faith in court. The appellate court held at 144 that the state legislature's views of “a compelling state interest” overrode first amendment guarantees in this case.

26. New Rider v. Bd. of Ed., 480 F.2d 693 (10th Cir. 1973) and Hatch v. Goerke, 502 F.2d 1189 (10th Cir. 1974), cited in supra note 9.

27. Sequoyah, 620 F.2d 1159; Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981) (Navajo efforts to protect sacred sites by compelling governmental action to lower the water level of Lake Powell and to limit access to the Rainbow Bridge National Monument denied on grounds of compelling governmental interest in the lake level and that the establishment clause precludes governmental management of a religious shrine on government property); Inupiat Community of Arctic Slope v. U.S., 548 F. Supp. 182 (D. Alaska 1982) (Inupiat efforts to preserve on free exercise grounds an area in the Beaufort and Chuckchi Seas from oil exploration denied on grounds of overriding governmental interest and possible establishment clause problems); Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 371 (1983) (see discussion supra in text accompanying notes 1-6); Fools Crow v. Gullet, 706 F.2d 856 (8th Cir. 1983), cert. denied, 104 S. Ct. 413 (1983) (restricting and regulating access to sacred site on state land did not infringe on Indian plaintiffs' free exercise rights).

28. Northwest Indian Cemetary Protective Assoc, v. Peterson, 565 F. Supp. 586 (N.D. Cal. 1983), modified, 764 F.2d 581 (9th Cir. 1985).

29. For a fuller treatment of the status of American Indian free exercise cases see Michaelsen, , We Also Have a Religion: The Free Exercise of Religion Among Native Americans, 7 American Indian Quarterly 111 (1983)CrossRefGoogle Scholar.

30. See Eliade, M., The Sacred and the Profane: The Nature of Religion (1961)Google Scholar, see Ch. I on “Sacred Space and Making the World Sacred.”

31. Perhaps the most outstanding instance of the weightiness of this sort of view in recent public policy developments is that involving the long and eventually successful struggle of the Taos Indians to recover sole control of Blue Lake and surrounding area from the U.S. Forest Service (Pub. L. 91-550, 84 Stat. 1437 [Dec. 15, 1970]). Spokespersons for the Taos Indians repeatedly made the point before the Indian Claims Commission and in Congressional hearings that what was involved was not merely a few shrines scattered here and there throughout the disputed area but a life-sustaining symbiotic relationship between the tribe and the whole area. See, e.g., Taos Indians-Blue Lake Hearings on H.R. 3306, S. 1624, S. 1625 Before the Subcomm. on Indian Affairs of the Comm. on Interior and Insular Affairs, U.S. Sen., 90th Cong., 2d Sess. [hereinafter Taos Hearings 1968] at 25, 101-102, 206-211 (1968), and Kelley, , The Impairment of the Religious Liberty of the Taos Pueblo Indians by the United States government, 9 J. of Church and State 161 (1967)CrossRefGoogle Scholar.

32. Narrative Direct Testimony of Abbott Sekaquaptewa. Plaintiffs' Exhibits in U.S. Ct. of Appeals for Dist. of Columbia Cir. Wilson at Vol. III, p. 00785 1982: “The peaks have always been of central importance to the religious beliefs and practices of all Hopis with implications affecting all mankind …” and 00786: [expansion of the resort facilities on the San Francisco Peaks] “would constitute a direct affront to the Kachinas and to the Creator, thereby resulting in severe adverse consequences to the Hopis and all mankind.”

33. Clinton, , Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan. L. Rev. 979, at 1041, note 320 (1981)CrossRefGoogle Scholar.

34. Id. The cases Clinton mentions are Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250 (1973) (concluding that the church building's unique significance required the government on free exercise grounds to consider the necessity of condemnation for an urban renewal project), and Kotochira Insha v. McGrath, 90 F. Supp. 892 (D. Hawaii 1950) (seizure of Japanese Shinto shrine under the Trading with the Enemy Act during World War I violated first amendment freedom of religion guarantees).

35. Northwest Indian Cemetary, 565 F. Supp. 586.

36. The Indian designation for the area in dispute in Northwest, 565 F. Supp. 586 (N.D. Cal. 1983).

37. The Navajo plaintiffs in Wilson, 708 F.2d 735.

38. Mormon Church v. U.S., 135 U.S. 1 (1890) (affirmed Congressional right to repeal the Act of Incorporation of the Church of Jesus Christ, Latter-Day Saints and to dispose of its property; free exercise of religion does not preclude power of Congress to prohibit polygamy).

39. Clinton, supra note 33.

40. Sequoyah, 620 F.2d 1159.

41. See Matthessen, P., Indian Country 115 (1984)Google Scholar.

42. 620F.2dat 1165 (1980).

43. Reynolds v. United States, 98 U.S. 145 (1878).

44. Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Bd., 450 U.S. 707 (1981).

45. Wisconsin v. Yoder, 406 U.S. 205 (1972).

46. Id. at 218.

47. Supra note 4. Even in the case which the Indian plaintiffs won, the court stated that the Indians had “to show that the area at issue is indispensable and central to their religious practices and beliefs …” Northwest Indian Cemetery, at 7 556 F. Supp. 586.

48. One commentator asserts that this standard, when applied to Indian religions, “eviscerates the free exercise clause.” Pepper, , The Conundrum of the Free Exercise Clause—Some Reflections on Recent Cases, 9 N. Ky. L. Rev. 265, 283Google Scholar. See further Note, Native American Free Exercise Rights to the Use of Public Lands, 63 Boston Univ. L. Rev. 141 (1983)Google Scholar; Note, Indian Worship v. Government Development—A New Breed of Cases, 1984 Utah L.R. 313, and Stambor, supra note 4, at 67Google Scholar.

49. Supra notes 16-19 and accompanying text.

50. D.C. Dist. Ct. Judge Richey flatly declared, in Hopi Indian Tribe v. Block, that AIRFA “was meant to insure that the American Indians were given the protection that they are guaranteed under the First Amendment; it was not meant to in any way grant them rights in excess of those guarantees.” 8 Indian L. Reporter at 3076 (08-Sept. 1981)Google Scholar. Judge Richey's position has become the court accepted one in free exercise cases dealing with issues of substance. See Craven, , The American Indian Religious Freedom Act—An Answer to the Indian's Prayer?, 29 So. Dak. L. Rev. 131 (1983)Google Scholar and Michaelsen, , The Significance of the American Indian Religious Freedom Act, 52 J. Am. Acad, of Religion 93 (1983)Google Scholar.

51. Judge Weigel, the district court judge who decided Northwest (supra note 30), tells of his experience with one Indian who sat in the courtroom with his hat on. The judge asked the bailiff to ask the man to remove his hat. When informed of the judge's request the man grudgingly did so. After Judge Weigel handed down a decision favorable to the Indian plaintiffs he received various notes of appreciation from Indians, including one from the man with the hat who wrote that now that the judge had made a good decision he would be glad to take off his hat to him. Weigel discussion, Hutchins Center, Univ. of Cal., Santa Barbara (Dec. 7, 1983) and Weigel files.

52. In response to an objection that an attorney was leading an Indian witness, the trial judge in New Rider, supra note 8, overruled because of the witness' young age and because “we all know the timidity of most Indians,” Transcript, N.D. Okla., 58 (Aug. 7, 1972). The district court judge in Wilson (supra note 1) asked, in reference to the Navajo Medicinemen's Association, one of the plaintiffs in the case, “What is a medicineman?” Transcript, D.C.C. 26 (May 29, 1981).

53. Price, M. & Clinton, R., Law and the American Indian 359 (2d ed. 1983)Google Scholar.

54. Why Courts Don't Work (1982) at 245. On “evidentiary problems” confronted by Indians in land cases and specifically difficulties encountered in trying to protect interests which are based primarily on oral tradition, see Perspective, Recovering Indian Lands: The Land Patent Annulment Suit, 2 Ecology L. Q. 195, 208 (1972)Google Scholar. Nash, Foreigners in Their Own Land, 4 Legal Service Bull. 105 points out with regard to the Australian aborigine in court that not only are there significant differences between whites and aborigines with regard to traditions and language, but even the aboriginal “style of talking” differs markedly from that of the whites.

55. See Scott, W., In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (1977)Google Scholar.

56. Such suspicions were a persistent theme in the hearings on Taos claims to Blue Lake and environs. Taos Hearings 1968: passim and Taos Indians-Blue Lake Amendments. Hearings on S. 750 and H.R. 471 Before the Subcomm. on Indian Affairs of the Comm. on Interior and Insular Affairs, U.S. Sen., 91st Cong., 2d Sess., [herinafter Taos Hearings 1970] passim (1970).

57. Spicer, E., Cycle of Conquest: The Impact of Spain, Mexico, and the United States on the Indians of the United States (1962) at 576Google Scholar. See further Jacobs, W., Dispossessing the American Indian: Indians and Whites on the Colonial Frontier (1972) at 127Google Scholar. “Land for the aborigines was all important because it was a spiritual ingredient of their culture; it determined their social groupings and status; and finally, it was the source of their livelihood.”

58. See Earth Might Be Fair: Reflections on Ethics, Religion, and Ecology 7 (Barbour, I. ed. 1972)Google Scholar: “The history of redemption has been the theologian's preoccupation, and the realm of nature and man's relation to it have too often been ignored.” Also Davies, W., The Territorial Dimension of Judaism xvii (1982)Google Scholar points out that Christians have understood their relationship to Judaism more in terms of such “theological and metaphysical abstractions … as God, Creation, Time, Man, Sin, Revelation, Prophecy, Reward, and Punishment” than in terms of the land. See further Davies, M., The Gospel and the Land: Early Christianity and Jewish Territorial Doctrine (1974)Google Scholar.

59. Report on Energy Development in Northwestern New Mexico: A Civil Rights Perspective at 60, New Mexico Advisory Comm. to the U.S. Civil Rights Comm. (Jan. 1982).

60. 620 F.2d 1159.

61. 620 F.2d at 1164.

62. Whitehorn, 561 P.2d 539.

63. Transcript of Trial, Dist. Ct. of Garfield Cty, Okla., Case No. F-75-18 at 7 (1976).

64. American Indian Religious Freedom. Hearings on S.J. Res. 102 Before the Select Comm. on Indian Affairs, U.S. Sen., 95th Cong., 2d Sess. at 86 (1978).

65. Theodoratus, D., Report for U.S. Dept. of Agriculture, Forest Service, on Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest at 44 (04 9, 1979)Google Scholar.

66. 13 Wassaja: The Indian Historian 39 (1980)Google Scholar.

67. Id. at 41. See further Suagee, , American Indian Religious Freedom and Cultural Resource Management: Protecting Mother Earth's Caretakers, 10 American Indian L. Rev. 15Google Scholar: “the defenders of tribal religions and cultures will have a greater likelihood of success if their efforts are also supportive of tribal sovereignty.” (1982).

68. Getches, D., et al., Federal Indian Law: Cases and Materials 504 (1979)Google Scholar.

69. See Berkhofer, R. Jr., The White Man's Indian: Images of the American Indian from Columbus to the Present (1978)Google Scholar.

70. “[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd., 450 U.S. 707, 714 (1981).

71. See McLaughlin, , Who Owns the Land? A Native American Challenge, Juris Dr. (09 1976), at 17Google Scholar and The Native American Challenge: In Pursuit of Tribal Sovereignty, Juris Dr. (Oct. 1976), at 51.

72. Price, M. & Clinton, R., Law and the American Indian 360 (1983)Google Scholar.

73. It is the basic thesis of Medcalf, L., Law and Identity: Lawyers, Native Americans, and Legal Practice (1979)Google Scholar, that lawyers for Indians, mostly left-leaning politically, actually seek to impose on Indians the style, thought-processes and values of American liberalism. But see Brakel's review in Am. Bar Fndtn. Res. J. (1980) at 401.

74. The words of John Heckewelder, one of the most perceptive and empathetic of the Euro-American missionaries to Indians. See Heckewelder The Indian and the White Man 61 (Washburn, W. ed. 1964)Google Scholar.

75. See further Bergan, P., Trial Advocacy in a Nutshell 302 (1979)Google Scholar: “The persuasiveness of analogy lies in the factfinder's ready identification with it.”

76. People v. Woody, 40 Cal. 69, 394 P.2d 813 (1964).

77. 394 P.2d at 817.

78. The analogy was used by Taos claimants as early as 1927: Taos Hearings 2968 at 29.

79. Taos Hearing 1970 at 108.

80. Not even the Reverend Jerry Falwell claims that the Thomas Road Baptist Church in Lynchburg is the capitol of America. The fact that his Moral Majority (now Liberty Federation) is based in Washington, D.C. indicates that he knows where the nation's capitol is.

81. Transcript of Trial, Northwest Indian Cemetery Protective Assoc, v. Peterson 77. No. C-8204049 SAW (N.D. Cal., March 14, 1983).

82. Taos Hearings 1968: 102. Various other analogies were attempted in advancing the Taos claims. To convey centrality, it was suggested that Blue Lake is to the Taos Indians like the cross is to Christians. The water in and from Blue Lake was also said to be a symbol of life similar to the elements in the Christian Eucharist. And one expert witness pointed out that “[to] the people of Taos … there is a horror in seeing sportsmen bathing in Blue Lake or tossing into it the offal from fish freshly caught; such as a non-Indian Baptist might feel in seeing the baptismal pool of his fathers utilized as a wading pond, or a Catholic might sense if a casual visitor tossed orange peels into the font of holy water and pinched a wad of gum on its rim.” Id. at 25, 99, 199.

83. Supra note 16.

84. House Report NO. 95-1308, 85th Cong., 2d Sess. at 2 (1978).

85. Webster's first definition of “sanctuary” is illustrated by a reference to the “holy of holies” in the temple of Jerusalem.

86. Northern Lights, Inc., Project No. 2752-000, 27 FERC § 63,024.

87. Ferc Feis on Kootenai River Hydroelectric Project No. 2752—Montana at A-4 (April 1981). Similar analogies have been employed in other cases. In Badoni, 638 F.2d 172, supra note 22, for example, Rainbow Bridge was analogized with the Mormon temple: “One doubts that the Government would claim that it could declare the Mormon Temple to be a national monument and proceed to manage both it and the immediate adjacent public streets and parks so as to prevent the congregation from worshipping there.” Pet. for Writ of Cert. at 30 (March 1981).

88. Ball, M., The Promise of American Law: A Theological, Humanistic View of Legal Process 17 (1981)Google Scholar.

89. Id. at 19.

90. Supra note 54 and accompanying text.

91. MacLeish, , Apologia, 85 Harv. L. Rev. 1505, 1508 (1972, emphasis added)Google Scholar.

92. Supra note 88, at 19.

93. Psalm 137: 1-6.

94. As reported by M. Eliade, supra note 30, at 33.

95. Id.

96. Anthropologist R. Berndt makes an apt distinction between “secret-sacred” and “sacred” in his discussion of the Australian Aborigines in The Sacred Site: The Western Arnhem Land Example 9 (1969)Google Scholar: “The dividing line between ‘sacred’ and ‘nonsacred’ is not easy to draw, except that in the case of the first, the term ‘secret-sacred’ seems to be more appropriate. As regards the others, the nonsecret or those without ritual connotations, because they have mythic associations they too can be defined as sacred, but in a different degree.”

97. Supra note 16, and Federal Agencies Task Force, American Indian Religious Freedom Act Report 73 and Appendix C (Aug. 1979).

98. As is noted in a memorandum prepared by the Taos Pueblo in connection with their efforts to recover Blue Lake and environs, Taos Hearings 1968: 24, “in many religions … to reveal the holy mysteries to the uninitiated is a blasphemy which destroys their religious power.”

99. U.S. DEpt. of Energy Hearing on Draft EIS, Transcript of Proceedings 49 (Aug. 16, 1979).

100. Id. An expert witness in one case reported that the sensitivity of the followers of one Indian tradition in that case was so great that they felt that “even discussion of the area is an infringement upon their religious belief.” Transcript of Trial, Northwest Indian Cemetery Protective Assoc, v. Peterson 247, No. C-8204049 SAW (N.D. Cal., March 14, 1983).

101. At a hearing before the All Indian Pueblo Council, the D.O.E. manager of the proposed Baca Ranch Project appealed for help in identifying sacred areas “so that I can understand enough so that the project will not interefere and not understand enough that I could constitute an interference.” Transcript cited supra note 99, at 123. The Office of Contract Archaelogy, Univ. of N.M. Report on High Altitude Adaptations Along Redondo Creek: The Baca Geothermal Project notes at 114, the problem in the specific case of ritual plants: the collection of such plants “is carefully guarded through secrecy … Therefore, a specific discussion of the ceremonial plants obtained in the project area is impossible” (1981). See the discussion of the role of secrecy in Wilson, supra note 6 and accompanying text.

102. Underhill, , Red Man's Religion: Beliefs and Practices of the Indians North of Mexico at 31 (1965)Google Scholar.

103. Blackburn, , December's Child: A Book of Chumash Oral Narratives at 13 (1975)Google Scholar.

104. D.O.E. Contract No. DEAC-0719-EV10018 at 1-3 (1979).

105. 5 U.S.C. § 552 (1966).

106. The National Historic Preservation Act, as amended in 1980, provides that “[t]he head of any Federal agency, after consultation with the Secretary [of the Interior], shall with-hold from disclosure to the public, information relating to the location or character of historic resource whenever the head of the agency or the Secretary determines that the disclosure of such information may create a substantial risk of harm, theft, or destruction to such resources or to the area or place where such resource are located.” (16 U.S.C. § 470w-3). Under this provision requests based on the Freedom of Information Act may be denied. Section 9 of the Archaeological Resources Protection Act of 1979 also authorizes Federal land managers to withhold from disclosure to the public under the Freedom of Information Act information concerning the nature and location of archaelogical resources. (16 U.S.C. § 470hh).

107. F.R.C.P. Rule 25(c) (1)-(8) (provides for protective orders upon motion to restrict the information sought through discovery or the manner in which it is discovered, to prevent annoyance, embarrassment, oppression, or undue burden), and F.R.C.P. Rule 77(b) (judges have the authority to examine documentary evidence in chambers or to take the testimony of witnesses in camera where the interests of protecting the privacy rights of witnesses and/or parties to a proceeding outweighs the right of a public trial). See Echo-Hawk, , Natural Resource Development on Public Lands: Strategies for Protection of First Amendment Rights, 6 Indian Law Support Center Reporter 1, 9 (1983)Google Scholar.

108. 16 FERC § 63,062 (1981), 19 FERC § 63,016 (1982), 22 FERC § 63,068 (1983).

109. 27 FERC § 63,024 (Full Distribution Portion, 1984).

110. As was the case with the tribal elders in Hopi Indian Tribe v. Block, 708 F.2d 735.

111. U.S. v. Ballard, 322 U.S. 78 (1944).

112. See cases cited supra notes 9 and 25. See New Rider v. Board of Education, 480 F.2d 693 (10th Cir. 1973); Hatch v. Goerke, 502 F.2d 1189 (10th Cir. 1974); Tetrud v. Burns, 385 F. Supp. 153 (S.D. Iowa 1974); aff'd 522 F.2d 357 (8th Cir. 1975); Frank v. Alaska, 604 P.2d 1068 (1979); Orewgon v. Soto, 537 P.2d 142 (Or. Ct. App. 1973).

113. See Badoni v. Higginson, 455 F. Supp. 641, 645, (D. Utah, 1977) and Luckert, K., Navajo Mountain and Rainbow Bridge Religion (1977)Google Scholar. See also Carrasco, D., Sacred Space and Religious Vision in World Religions: A Context to Understand the Religious Claims of the Kootenai Indians (1981)Google Scholar, reprinted in Indian Religious Freedom Issues, supra note 20, at Appendix A; the article was prepared in connection with the Kootenai River challenge of a Northern Lights, Inc. project to build a hydro-electric dam on the Kootenai River, supra note 89-90.

114. Supra note 28. A report by the anthropologist, Dorothea Theodoratus (supra note 65), which was prepared for the National Forest Service (which later became the defendant in the case) actually proved to be of considerable aid to the plaintiffs because it underlined the decisive character of the locale in Indian religious belief and practice.

115. 620 F.2d 1159, supra note 4.

116. Affidavit of Ross O. Swimmer, Sequoyah v. T.V.A., Civ. No. 3-79-418 (E.D. Tenn. N.D. 1979).

117. Id.

118. Cf. Norgren, and Shattuck, , Limits of Legal Action: The Cherokee Cases, 2 American Indian Culture and Research J. 14 (1978)CrossRefGoogle Scholar.

119. For a first-hand description of such governmental tactics and their impact on traditionalists in various tribal settings see Matthiessen, P., Indian Country (1984), passimGoogle Scholar.

120. P.L. No. 91-550, 48 Stat. 1437 (Dec. 15, 1970). See Whatley, , The Saga of Taos Pueblo: The Blue Lake Controversy in 2 The Indian Historian 22 (Fall 1969)Google Scholar.

121. 16 U.S.C. § 228i(c) (1975).

122. Sen. Report No. 98-411, 98th Cong., 2d Sess. (May 14, 1984). See Zuni Indian Tribe Lands Bill. Hearing on S. 2201 Before Select Comm. on Indian Affairs, U.S. Sen., 98th Cong., 2d Sess. (April 9, 1984).

123. 16 U.S.C. § 431-433 (1906). The Pipestone National Monument is one example, at § 445c(c).

124. 16 U.S.C. § 470, et seq. (1966).

125. 16 U.S.C. § 1271-1287 ((1968).

126. 16 U.S.C. § 1131-1136(1964).

127. 16 U.S.C. § 470-470w-6 (Supp. V 1981).

128. 16 U.S.C. § 470aa-17011 (Supp. V. 1981).

129. See Suagee, supra note 52, and Echo-Hawk, supra note 107.

130. On covenant and law see M. Ball, supra note 91, at 14: Covenant implies a degree of participation in the law not implied in the concept of social contract. Hence generations which succeed the founding fathers “are not made party to a mythic compact by implied consent. They affirm a contemporaneous covenant by participation in, and acceptance of, the identity of the people whom the covenant creates.” See further Perry, M., The Constitution, The Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Ch. 4 (1982)Google Scholar.

131. “Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith …” Felix S. Cohen, quoted in Cohen, F., Handbook of Federal Indian Law at v (1982)Google Scholar.

132. It is encouraging to note that two of the sacred site cases discussed supra—Badoni, 638 F.2d 172, and Fools Crow, 706 F.2d 856—drew support from religious groups in the form of amici briefs.