The American Indian Religious Freedom Act of 1978

by Jack R. Johnson 09.2022

Imagine a society where any religion you might practice was outlawed. You  could not attend services in your own church, and, in fact, the church itself was outlawed. Your preacher, priest or rabbi could be fined and jailed if they mentioned a particular religious ceremony. If you were a Christian, the images of Christ crucified would be banned even on private property, communion would be illegal as would standard ceremonial gestures, such as kneeling, or prayer.

Years ago, our founding fathers wisely took measures to prevent this. The so called ‘Establishment Clause’ prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.  Yet, the Establishment Clause apparently does not apply to one set of North Americans: the Native American Indian.

According to Dennis Zotigh writing in Smithsonian Magazine, in 1883 the Department of Interior’s Code of Indian Offenses punished Native Indian religious dances and ceremonial feasts by imprisonment or withholding food, so called “treaty rations”, for up to 30 days. Any medicine man (essentially, an Indian preacher,  priest or rabbi) convicted of encouraging others to follow traditional practices was to be confined in the agency prison for not less than ten days or until he could provide evidence that he had abandoned his beliefs.

Of course, it wasn’t just a matter of preventing the Indian religious practices. The U.S. government actively sought to convert American Indians to Christianity. During the 1870s, the administration of President Ulysses S. Grant assigned 13 Protestant denominations to take responsibility for managing more than 70 Indian agencies on or near reservations. The Catholic Church quickly established the Bureau of Catholic Indian Missions so they too could participate. In 1887, the Dawes Act included a particularly bigoted provision allowing religious organizations working among Indians to keep “up to 160 acres of federal land to support their own missions.”

What was their mission? The short answer is cultural genocide. 

Indian children were taken from their families and forced into boarding schools established by Christian or Catholic missionaries. As a requirement of their education at the boarding schools, the children attended mandatory Christian church services and religious indoctrination classes. These children were either encouraged — or in most cases, forced — to abandon their Native spiritual practices as well as their unique indigenous first and last names. In the name of religious progress, “Native children were forced into government-sponsored denominationally run boarding schools where many were abused physically, sexually, emotionally and spiritually, and where many of them died. The rallying cry to civilize/Christianize Indigenous children was ‘kill the Indian, save the child.’”

It was well over a century later before any of the laws restricting Native American religious practices were overturned. Finally, in a move that was more gesture than action, the American Indian Religious Freedom Act of 1978 was signed into law on August 11, 1978 by President Jimmy Carter. It established basic civil liberties for the American Indian (such as access to sacred sites, freedom to worship through ceremonial and traditional rites, and use and possession of sacred objects). However, there was nothing in the Act to force the U.S. to change state or federal law to accommodate particular Indian religious practices, such as ingesting peyote or using eagle feathers (a threatened species) in ceremonies. 

Protection of Native American religious sites falls under an even more nebulous legal umbrella since many of these sites are now national parks or on federal land. In fact, federal courts have so far found that neither the First Amendment nor the American Indian Religious Freedom Act of 1978 guarantee tribes protection of or access to sacred sites. For example, in Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court allowed the U.S. Forest Service to construct a road on USFS land, despite recognizing that construction through the cemetery would “destroy the…Indians’ ability to practice their religion.” 

Religion to many Native tribes is very land-based, said Stephen Pevar, an attorney for the ACLU who has specialized in Indian and tribal rights cases. “Many Americans move several times throughout their lifetimes, making it difficult for some to understand how crucial land is to Native spirituality,” he said. “Native Americans have a bond to the land and nearly every tribe has its own sacred lands.”

Speaking of the Dakota Access Pipeline which threatens the Missouri River, Pevar said, “To the Indians, this is both water and it is religion, whereas many white people seem to be pretty dismissive about the religious aspect and view it as more environmental.” Imagine, he said, if the pipeline was being built in Bethlehem, underneath Jerusalem or a similar holy site. “That’s how this is viewed by the people there,” Pevar said. “White people, unfortunately, don’t share those views. They don’t realize the religious significance of these locations.”

And both the U.S. Federal court and the Supreme Court seem to agree.

Shirod Younker, a Coquille ceremonial woodcarver, is acutely aware of the limitations of the act and the long road ahead: “It has been 44 years since this act was passed. The practices to remove and destroy our culture started more than 150 years ago, in the 1840s and ‘50s. It will take at least that amount of time to come close to restoring what we lost. […] Our ceremonial ways all come from the earth. We cannot effectively understand their importance or details until we restore the environment that helps sustain us, physically and spiritually.”

Put another way, the battle for American religious freedom has never been won in this country. For over two centuries it has been an ongoing struggle for the people who are, in fact, the first Americans.