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Native spiritual and tribal rights are the focus of legal discussion

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BOULDER, Colo. – In contemporary law, human rights tend to be equated with individual rather than collective rights, and government can interfere with Native spiritual practices by claiming it has a compelling interest in doing so, according to legal experts who gathered for a conference Feb. 27.

Jurisprudence and liberal ideals have difficulty accepting group claims in the context of public lands, yet American Indian religious use is “very place-bound,” said Prof. Sarah Krakoff, of the University of Colorado Law School, who noted that Native sacred sites often ended up on public or private lands with the shrinking of reservations.

“It’s all about the rights of the conqueror and the colonized and I don’t know if that’s ever going to change,” said Steven C. Moore, a senior staff attorney with the Native American Rights Fund, Boulder. He repeated the oft-expressed concern, “How can we let Native Americans tell us what to do with our public lands?”

Yet, he said, there are millions of acres of public lands, of which 160 million acres are allotted for grazing and 45 million acres for oil and gas development in addition to other large allotments, including more than 400 long-term permits for church camps.

The “Native Americans, Race and the Constitution” conference drew faculty and staff from law schools at Harvard University and at universities in Colorado, Michigan, Kansas and Hawaii, and from NARF.

Prof. Bethany Berger, Oneida Indian Nation visiting professor at Harvard Law School, addressed the racialization of power and privilege in the United States, and said that tribes have been regarded as inferior racial groups not entitled to political rights and destined to disappear, while tribal individuals could be assimilated into white America.

Today, tribal sovereignty may be regarded as inconsistent with individual equality, she said.

Unlike black/white marriages, which were discouraged during much of American history, at times Native women were encouraged to marry white men because it furthered Manifest Destiny’s doctrine of white control over Native lands and the demise of tribes through assimilation.

In a major religious rights case, the U.S. Supreme Court was recently asked to review a circuit court ruling that would allow the use of treated sewage effluent to enhance snow at a private ski resort on federal land in the San Francisco Peaks near Flagstaff, Ariz. The area is regarded as sacred by a number of southwestern tribes, an issue addressed by several of the conference participants.

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Although a lower court said there is “no actual interference with the practice of your (tribal) religious activities,” the Hopi Tribe and others would say there was “a sacrilege” and interference “because you have altered the landscape,” said James E. Scarboro, senior counsel, Arnold & Porter LLP, an attorney for the Hopi, who termed it a “momentous case” under the Religious Freedom Restoration Act.

Under RFRA, the government cannot interfere with Native religion by “substantially burdening” its practice unless the government’s interference meets a “compelling” government need in the way that is least burdensome to the religious practice in question.

“I’m very concerned about the outcome and what it portends for Native American religious rights,” Scarboro said of the Supreme Court’s possible decision to review the case. “For tribes all over the country with religious practices on federal land this decision is going to be important.”

Rather than focusing litigation strategy on the concept of “substantial burden,” it might be better to address the principle of the government’s “compelling interest,” others suggested.

Conference participants also included Prof. Stacy Leeds, University of Kansas School of Law and a former Cherokee Nation Supreme Court Justice, who described Cherokee Freedmen cases in tribal and federal courts, including a new case filed Feb. 3.

A long-standing dispute over the citizenship status of descendents of freed Cherokee slaves is at the heart of the recent filing, which asks the federal court to decide whether the freedmen descendants have federal citizenship rights in the tribe.

The Cherokee Nation argues that the freedmen have no continuing federal right to tribal citizenship because the freedmen provisions of the Treaty of 1866 were abrogated by Congress when it passed the Five Tribes Act in 1906, she said in material provided for the conference.

The freedmen argue that the freedmen provisions of the treaty are still binding federal and tribal law.

Other conference speakers were Prof. Melody Kapilialoha MacKenzie, Native Hawaiian from the University of Hawaii, who traced events moving toward Native Hawaiian sovereignty and the resolution of claims, and Prof. Matthew L.M. Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, Peshawbestown, Mich. on “Pushing the Envelope” in Indian law cases.

The conference was sponsored by the American Indian Law Program and the Byron R. White Center for the Study of Constitutional Law at the University of Colorado.