Abstract
Excerpted From: Emily Campbell, Unequal Land: Towards Full Recognition of Indigenous People's Religious Rights, 10 Texas A&M Journal of Property Law 167 (April 11, 2024) (208 Footnotes) (Full Document)
On a summer September day, many members from the southeastern Arizona Apache Reservation caravanned from their homes to the Ninth Circuit Court of Appeals in San Francisco. Angry and frustrated, the Apache sought to protest a recent Ninth Circuit decision that delivered another blow to their right to free religious exercise. Specifically, the Apache sought to protest the Ninth Circuit's holding that copper mine construction underneath Apache sacred land in Arizona did not “substantially burden” the Apache's religious practice under the Religious Freedom Restoration Act (RFRA) or the First Amendment's Free Exercise Clause. The copper mine would destroy Apache's sacred land and slowly eradicate more of the Apache's culture and identity. The Apache protest worked, and recently, the Ninth Circuit decided to rehear en banc its earlier decision. But the Apache's struggle to protect their sacred land from desecration and practice free religious exercise highlights the United States court system's flawed reasoning regarding indigenous free-exercise claims.
This Article argues that the United States court system's treatment of indigenous religious claims misunderstands native religious practices, contravenes congressional intent, and holds native religious practitioners to a higher standard of proof than practitioners of mainstream religions in their free-exercise claims. The Article proceeds in five parts. Part I explains native religious practices and the importance of land and sacred sites to indigenous peoples' religious practice. Part II sets out the history of indigenous religious freedom, or lack thereof, in the United States. Part III demonstrates that Congress passed several pieces of legislation with an anti-subordination purpose to remedy the oppression suffered by indigenous people. But, as Part IV illustrates, recent Supreme Court and Ninth Circuit decisions regarding indigenous free-exercise claims have gone against that anti-subordination intent for several reasons, including courts misunderstanding native religious practices, requiring native religious practitioners to prove their subjective belief, and analyzing indigenous free-exercise claims from an individual-rights rather than a collective-rights perspective. Finally, Part V argues that United States courts should correct course to fully protect the religious freedom rights of indigenous people. This change requires that courts (1) assume indigenous free-exercise claimants suffer subjective harm, (2) evaluate indigenous free-exercise claims through an anti-subordination lens to remedy past oppression suffered by indigenous people, and (3) treat native religious claims as a collective rather than individual right.
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In conclusion, courts must change their analysis of indigenous free-exercise claims to address the cycle of oppression suffered by indigenous peoples. The United States has a long history of creating policies to destroy indigenous religious culture. Despite Congress's attempts to offer greater religious exercise protection to Native Americans with the passage of AIRFA, RFRA, and RLUIPA, courts continue to frustrate these legislative efforts. Courts should do three things to adjust course and fully protect indigenous free-exercise rights. First, once a claimant articulates a subjective harm on their religious practice, courts should presume that this harm exists. Second, courts should evaluate indigenous free-exercise claims from an anti-subordination lens to remedy past oppression. Third and finally, courts should broadly construe RFRA to offer indigenous peoples the broadest protections.
Emily Campbell is a J.D. Candidate at Texas A&M School of Law with a graduation date of 2024.
