UPON
A MOUNTAIN
The
TOP
Religious
Freedom
Preservation
of
Fight
Indian
for
Lands
Karla Sexton
Independent Research
Professor Wunder
A p r i l 1983
0009*1
For a
Cherokee
F i r e in y o u r E y e s
Like a wounded Deer
You cannot Run
You cannot Stop
A hint of D e s t i n y
And agony there
Existence Named
In m e n t a l f l i g h t
I take you high
Upon the M o u n t a i n Top
Among the S h a d o w s
of the C e d a r T r e e s
And b e n e a t h
the G r a n d m o t h e r Sun
W h e r e the f l o w e r s
of Y e l l o w G o l d
and the W a r m t h
of t h e W i n g e x i s t s
I give you strength*
I.
During
the
sacred
Introduction
ceremony
seeker
will
climb
to a s o l i t a r y
sings.
His
quest
to
Great
Spirit
is
receive
For
the
site where
sacred
the
S p i r i t , to w h i c h
Judeo-Christian
religion
up
from
except
they
an
soil.
in t h e i r
a r e , and
"The
view
the
linked
the
trees
soil
and
aloud
benefits
of
with
to M o u n t
the
top on
Dakota, Bear
met
and
Butte
the
Sinai
soil and
in
directly
of
E d e n , so t o
speak,
plants
and
the
- as a l i v e
sheep
is
the
his
they grew
is a l i v e
which
Great
that
Garden
the
vision
he prays
the H o p i , the
itslef
Quest, a
the m o u n t a i n
be d r a w n
Hopi believe
is t h e i r
to
originally
could
For
and
of S o u t h
the Lakota
analogy
It
place where
tribe
tradition.
are o n e .
the
Lakota
the Vision
the powers
intrinsically
he p r a y s .
of
they
as
herd.
-2-
They
believe
The
his
soil
Indians'
c i r c l e of
equally
identity
been
into
disrupted
and/or
confiscation.
nature
of
Indians
Indian
can
their
within
background
and
A c t of
on a n a l y z i n g
Karok
Dam
and
in
1978.
Tellico
in
endeavor
in t h e C o c o n i n o
of
Beaufort
and
of t h e
"Nonbut
of
this
of
Religious
will
the Alaskan
in
the
over
the
the
fight
Canyon
the
Inupiat's
over
be
Yurok,
the G l e n
efforts
Forest
the
the N a v a j o s '
with
exercise
survey.
the s u r v e y
Rock
their
free
Indian
at C h i m n e y
Bowl.
have
basic
to a s s e r t
C h u k c h i S e a s , and
Sun
by
destruction
i n c l u d e : the
Monument
National
the A r i z o n a
Indians
or s y n a g o g u e ,
the A m e r i c a n
tenacious
is
balance
recognized.
in M i n n e s o t a ;
in T e n n e s s e e ;
from
throughout
to
National
-
understanding
where
concept
efforts
Forest
This
be a c o n s i d e r a t i o n
struggle
Indians'
a stone
tribes
recent
for land
development
Indian
focus
Cherokees'
reservior
of
the
feather.
central
Bridge
the
che
an e a g l e
will
"In
permeates
i g n o r a n c e , the
been
The
Indians
and
out of
be d i s c u s s e d
land
life."3
in a c h u r c h
by v a r i o u s
effectiveness
Tolowa
utahj
worship
the
- even
their lands
has not
the survey
these
Rainbow
protect
Primarilly
will
Rivers National
the
culture.
the c o n s t i t u t i o n a l
religion
Included
Freedom
on
with
awareness
top or with
efforts
based
and
2
. . .
in c i r c u m s t a n c e s
religions
on a m o u n t a i n
rights
at
and
comprehend
Recent
oneness
a b a l a n c e of
particularly
to r e c o v e r
Six
and
by l a c k of
sought
of
is s a c r e d .
creation, everything
integrated
non-Indians
not
itself
life, religion, tradition
sacred
has
the
battle
Hopi
recreational
This analysis
will
-3-
then
in
be a p p l i e d
the Jemez
Zia, Santa
site
of
as
a perspective
Mountains
Ana, Santa
Clara
in
the
nineteenth
century
oftentimes
took
Indian
such
the
many
thus many
of
of
to
of
Pueblos
and
which
is
the
proposed
many
of
Indian
religious
this
of
M 1
whose
religion
repressive
control
of
banned
religious
oppression
that
should
were
this
driven
attitude
Indian
years
of
protection
of
r e p r e s s i o n , the
and
exercise
own
their
Freedom
of
religion
"rennaissance"
of
ceremonies,
immoral.7
developed
they
the
Act
of n a t i v e
Indians
States
do
or b e c a m e
repression,
Religious
rights
being
what
underground
of
United
a feeling
hide
be
and
lost.
enactment
was
intended
religion.
recognition
to
the
the
religious
as
free
seemed
to
Indian
culture,
to
promise
of
believe
a
languages
religions.
III. American
On
Dakota
December
introduced
Indian
Religious
15 , 1 9 7 7 , S e n a t o r
Senate
Joint
00106
Freedom
James
Resolution
Act
Abourez.k of
102
by
. . .
of
period,
the
its
religion
suppression
was
they
Indian
has
civilizing'
Dance, which
constitutional
or
development."*
treatment
complete
the
and
Jemez,
Indians'
a policy
the m a n y
resurgence
the
the
rituals
to a d v o c a t e
of
of
the
the American
After
had
Indians
In c o n t r a s t
lands
initial
form
banned
Sun
As a r e s u l t
among
who
policy
as
the
missionaries
the
situation
Background
beliefs.During
missionaries
border
of u n d e r s t a n d i n g
underpinnings
tribal
current
geothermal
II.
lack
the
which
a $125 m i l l i o n
The
to
on t h e
South
floor
-4-
of
the United
religious
referred
which
to t h e
Senator
before
from
various
to s a c r e d
Select
members
and
that
carried
out
to
which
was
on M a r c h
the
The
Committee
then
in
the House
the
on
the text
of
On J u l y
21,
the House
on
Public
August
Law
11th
H.J.Res
the
and
and
Senate
procedures
impact
upon
the
p r a c t i c e s , are
injunction
738 and
the
then
was
access
from
a
Finally
Senate
with
forwarded
similar
Udall,
S.J.Res
agreed
to b y
and
chairman
102
it on J u l y
approved
was
Affairs,
by M o r r i s
was
for
95-709.
Insular
passed
amendment
resolution
was
amended
coalition
Committee
by
considering
738
Testimony
to
11
18,
1978.
the
Senate
became
9 5 - 3 4 1 . 12
The purpose
the House
and
were
Senate which
Report
passed
The House
contain
and
of
Resolution
Committee.
1978
was
the
and
of
protection
Select
to
Senate
Interior
diverse
their
resolution
process
Joint
and
twice
22th.
arrangements
reported
r10
esolution
and
and
9, 1 9 7 8 , the
with
read
Hearings
24th
tribes
Indian
Affairs,
chairman.
grounds
be
was
Indian
"equitable
21st
amendments.
resolution^House
of
102
on
Febrary
Indian
burial
S.J.Res
the H o u s e
then
on
On M a r c h
3, 1978
minor
of
urged
sites and
9
ordered
only
was
to A m e r i c a n
resolution
Committee
the Committee
exploitation."
relating
The joint
Abourezk
supportive
on A p r i l
Senate
freedom.
held
was
States
8
that
of
the
reports
of v a r i o u s
exercise
brought
was
Federal
of
into
Congress
resolution
"to
as
insure
stated
that
a g e n c i e s , as
traditional
Indian
in
both
the
they
policies
may
religious
compliance
with
the
constitutional
shall make no
laws
abridging
the
free
exercise
of
religion."13
a statement
of
policy
however^and
it
is t h i s
depth
to
later.
insure
that
As o n e
that
they
are
not meant
to
rather
The
than
aspect
court
has
will
was meant
of
guaranteed
under
were
the
given
First
them
as
enforcement
be e x p l o r e d
stated, "(T)he
Indians
grant
a vehicle
which
American
in a n y w a y
resolution
Act
the
in
was
more
meant
protection
Amendment;
it
was
in e x c e s s
of
those
rights
guarantees.
15
The A m e r i c a n
is a f e d e r a l
or
local
law and
effect
or
federal
funds.
The
I.
The
AIRFA
consult
with
in A p p e n d i x
to
to d e t e r m i n e
freedoms
have or might
basically
Include:
locations;
to m a k e
areas
religious
administrative
to
the
in
1979 any a r e a s
P r e s i d e n t , who
Opposition
to
then
full
seeks
events.
require
the r e s o l u t i o n
0010,
of
AIRFA
upon
on
areas
possible
the
of
by the
also
and
report
federal
their
infringement
physical
s u b s t a n c e s , and
will
is
leaders
to c e r t a i n
additional
force, headed
institution
Report
The Act
when
turn
federal
religious
Indians
(AIRFA)
state
to r e q u i r e
three major
to
1978
upon
infringements
t h e u s e of
16
in
text
The House
changes
which
A n i n t e r a g e n c y t18
ask
w a s a l s o set u p .
where
access
on
project
Indian
identified
restrictions
in
any
occur.
d e n i a l s of
interference
effect
it w o u l d
directly
to
binding
A c t of
other
ad»inist-razors
resolution
has no
Freedom
H o w e v e r , like many
receives
reproduced
Religious
thus
governments.
proscriptions
which
Indian
actual
directs
to
to
report
Congress
legislation.
Bureau
was voiced
of
only
officiali
17
Indian
in
the
Affairs,
House
-6where
repressive
echoed
and
some
attitudes
of
"Congressmen
the old
were
missionairles
talking
about
were
polgamy
and
19
peyote
as
if
they
were
expressed
by
some
congressmen
Indian
religion.
traditional
boogeymen."
as
Concern
to:
what
The concern
was
is o r
was
also
is
not
stated
in H o u s e
debate,
. . . (We) do n o t k n o w , t r u l y , w h e t h e r or n o t this
a b o n a f i d e I n d i a n r e l i g i o n b e c a u s e w e do n o t k n o w
a n y t h i n g a b o u t the I n d i a n r e l i g i o n s and t h a t is p r o b l a b l y
u n f o r t u n a t e , b u t n e v e r t h e l e s s t h e f a c t of t h e m a t t e r .
T h e c a s e is n o t a s s i m p l e a s w i t h M o r m o n s o r C a t h o l i c s
o r J e w s o r B a p t i s t s , In t h i s c a s e w e h a v e o n l y t h e
r h e t o r i c of t h e a u t h o r t e l l i n g us t h a t p e r h a p s any h i l l ,
any l a k e , or p e r h a p s any f o r e s t g l a d e m i g h t , on the
r e q u e s t of o n e I n d i a n o r a g r o u p of I n d i a n s - h o w e v e r
s m a l l - be set a s i d e for some o s t e n s i b l y r e l i g i o u s
p u r p o s e , w h e t h e r it is w i l d e r n e s s , w h e t h e r it is t h e
h o m e o f e n d a n g e r e d s p e c i e s , w h e t h e r it is t h e s i t e o f
drug abuse."
Answering
which
have
merely
those
attitudes
are
the
long
protected
the
religious
the o r t h o d o x
injunctions
Judeo-Christian
of
freedom
the
of
Constitution
al1,
believers. \ Senator
not
pdall
stated ,
" ( ! ) £ is s t a t i n g t h e o b v i o u s t o s a y t h a t t h i s c o u n t r y w a s
t h e I n d i a n s l o n g b e f o r e it w a s o u r s . F o r m a n y t r i b e s ,
t h e l a n d is f i l l e d w i t h p h y s i c a l s i t e s o f r e l i g i o u s a n d
s a c r e d s i g n i f i c a n c e to t h e m . C a n w e n o t u n d e r s t a n d t h a t
Our religions have their J e r u s a l e m s , Mount C a l v a r y s ,
V a t i c a n s , and M e c c a s . We hold sacre B e t h l e h e m , N a z a r e t h ,
t h e M o u n t of O l i v e s , a n d t h e W a i l i n g W a l l . B l o o d y w a r s
h a v e b e e n f o u g h t b e c a u s e of t h e s e r e l i g i o u s s i t e s . "
This
which
sentiment
was
also
echoed
in t h e r e p o r t s
on
the
resolution
chronicled,
" N a t i v e A m e r i c a n s h a v e a n i n h e r e n t r i g h t to t h e f r e e
e x e r c i s e o f t h e i r r e l i g i o n . T h a t r i g h t is r e a f f i r m e d
b y t h U . S . C o n s t i t u t i o n in t h e B i l l of R i g h t s , a s
w e l l a s by m a n y S t a t e a n d t r i b a l c o n s t i t u t i o n s . T h e
p r a c t i c e of t r a d i t i o n a l n a t i v e I n d i a n r e l i g i o n s ,
o u t s i d e t h e J u d e o - C h r i t i a n m a i n s t r e a m o r in c o m b i n a t i o n
w i t h i t , is 2 2f u r t h e r u p h e l d in t h e 1 9 6 8 I n d i a n C i v i l
Rights A c t .
Ai'V*
-7-
A o e r i c a d o e s n o t n e e d to v i o l a t e t h e r e l i g i o n s o f h e r
n a t i v e p e o p l e s . T h e r e is r o o m f o r a n d g r e a t v a l u e in
c u l t u r a l and r e l i g i o u s d i v e r s i t y . We w o u l d be p o o r e r
if t h e s e A m e r i c a n I n d i a n 2 3 r e l i g i o n s d e s a p p e a r e d f r o m
the face of t h e E a r t h . "
However
and
one
Congressman
predicted
although
an e n d
at
to
the
the
cut
course
time
through
of
his
these
lofty
the d e v e l o p m e n t
comment
the d i s c u s s i o n , and
was
ideals
in t h i s
one merely
thus his
area
advocating
foresight
was
as
follows:
" T h i s b i l l d o e * n o t g r a n t t i t l e to a n y b o d y . It a s k s f o r
t h e c o n t i n u a t i o n o f l o n g - e s t a b l i s h e d p r a c t i c e s in
A m e r i c a . Our courts have always and long made excellent distinctions when a contest has arisen between
a right of p r i v a t e p r o p e r t y , and a f r e e d o m of r e l i g i o n .
N o t h i n g in t h i s w i l l a b r o g a t e t h o s e r i g h t s . I t h i n k
it is a g o o d a n d s e n s i b l e r e s o l u t i o n . L e t u s g e t on
w i t h a d e c i s i o n , a n d g e t o n to a f a r m o r e i m p o r t a n t
,
m a t t e r t o d a y and d e f e a t the b i l l on the c o a l p i p e l i n e . " ^
Indeed
Indian
European
by
relations
discoverers
and
treaties, and, next
process
is l a r g e l y
have
settlers
by
the
undertaken
the
trend
the c o n c e p t
the
free
to l a n d
and
will
as
the
appear
is
than
of
at
first
t r u e of m o s t
cases
conclusion
build
exercise
seem
somewhat
each
the most
of
The
developing
upon
Today
the c o u r t s
of
the paramount
topical.
defined
by
in t h e N e w W o r l d , f i r s t ,
by n u m e r o u s
the c o n s t i t u t i o n , the approach
chronlogical
been
the
court
then
continuing
decisions.
Survey
In a n a l y z i n g
rights
sucessively
legislation.
IV.
apply
been
religion
personal
this
survey
scheme
and
haphazard
trends.
o t h e r , this
logical.
in s e e k i n g
as
in
to
deciding
rights
will
under
be
more
development
it w i l l
remain
H o w e v e r , as m a n y
approach
will
at
of
its
so
-8-
The
first
2
Authority. '*
major
evolved
case, Sequoyah
out
of
administrative
Tellico
Dam
Tennessee
of
native
Echota
of
the
Valley
and
being
The
to h e a t
and
in M o n r o e
improve
Dam and
economic
impound
river
1979
people."
about
into
over
on
who
behalf
plaintifs
flooding
complaint
was
Indian
of
"all
the
Indian
the
those
an
of m o s t
spent
Dam.
relevance
Century,
the
area
and
on
future
State's
to p r e v e n t
00105
in
name
and
26
1966,
flood
electricity
control,
outmigration
the dam
would
shallow
28
in l e n g t h .
In
29
the
the
project.
by
two
bands
Cherokee
Cherokee
religion
culture." ®
here
the
characterized
action
3
The
several
capital
individual
Cherokee
and
of
banks
sacred
16th
30 m i l e s
or
the
towns
operational,
three
injuction
Tellico
sites
recreation
as a c l a s s
present
tradition
Near
Cherokee
the
for
the
development, generate
in " a n
over
been
and
the
of
Little
P r o j e c t , begun
resources
traditional
sought
of
had
brought
the
of w a t e r a n d c o n v e r t
reservior
Nation
the
water
fully
acres
$111,000,000
practice
Cherokee
human
When
16,500
a deep
The case
Cherokee
27
as
shoreline
conditions
of
of
being
Reservior
homes, provide
by u n d e r u t i l i z a t i o n
of y o u n g
former
and
construction
ancient
linguistically
to s t i m u l a t e
20,000
the
include
as e a r l y
source
Tellico
are
Valley
lawsuits
the
flooding
which
T e n n a s e , the
Nation
of
County, Tennessee.
River
villages
the
designed
subsequent
Tennessee
Cherokee
latter
was
the
American
of
the tangle
surrounding
and
the Little
v. Tennessee
The
the
and
Indians
Indians
adhere
is f i r s t , t h e
to
Cherokee
completion
two grounds
of
urged
claim
in
of
and
their
a
the
-9-
constitutional
violation
secondly, a claim
Act.
Their
note
for
to an
based
analysis.
The
"sacred
sites, medicine
31
of
of
in
the
specific
gathering
injury
to
cases
the
be
to
significant
(l)Flooding
of
the
in d e s t r u c t i o n
places
sacred
the c u l t u r e
and
Freedom
important
will
resulting
of
Clause,
Religious
are
sites, holy
the d i s t u r b a n c e
loss
Exercise
Indian
include:
the p l a i n t i f f s
"irreversible
Free
in s u c e e d i n g
allegations
homeland"
and
on
the American
comparisons
"sacred
land;
on
allegations
later
cemeteries
based
and
of
and
balance
history
of
the
of
32
the
plaintiffs."
The
the
first
District
Court's
affirmance
on
the
the
suiton
interest
in
claim.33
not
The
or o t h e r w i s e ,
and
right
stated
The
the
Amish
in
of
to
Court
"(t)he
The
can
of
District
therefore
religious
lack
the
The
enter
access."^
had
free
court
first
exercise
of
of a p r o p e r t y
dismissed
a
property
amendment
clause
is
government-owned
practitioners
Court
from
Appeals
lacked
no
property,
be drawn
Appeals
interest
have no
other
disagreed
was
not
J J
of
based
Supreme
parents
infringed
itself
presents
the c o m p l a i n t a n t s
stated,
the
and
ground.
that
to w h i c h
Court
in c l a i m s
the
ground
court
Sequoyah
decision
different
that
conclusive.
that
the v a l l e y , and
a license
legal
element
upon
on
Appeals
the
Court
who
Free
case
claimed
their
reaffirmed
First
Exercise
a two-step
clause
of W i s c o n s i n
the
and
Fourteenth
applied
as e n u n c i a t e d
<} (L
v. Yoder,
compulsory
00106
analysis
school
(a s u i t
attendance
Amendment
in
against
law
rights).
-10-
The
first
step
is
the d e t e r m i n a t i o n
action
constitutes
if
the
burden
is f o u n d
of
the
extent
of
with
its
action
facts
based
to g e t
against
the
from
the
a line
"worship
inseparable
sufficient
their
from
of
the
at
the
religious
is
Is a
task of
dealing
balancing
criterion
of
Interest,
justifying
38
reason.
develop
with
Then
sufficient
criteria
were
the
Exercise
Free
"inseparability"
in S e q u o y a h
failed
to
particular
their way
criterion
governmental
37
religion.
compelling
did n o t
the plaintiffs
the
the g o v e r n m e n t ' s
step. Several
cases
comes
in a p p l i c a t i o n
that
first
or
of
step
additional
on a n o v e r r i d i n g
c l a u s e . From Yoder
show
to e x i s t , the n e x t
having
beyond
whether
the e x e r c i s e
S e q u o y a h , the p l a i n t i f f s
developed
which
on
the burden
the g o v e r n m e n t
In
of
a burden
of
of
g e o g r a p h i c a l l o c a t i o n is
39
life."
Alternatively, another
that
the v o r s h i p be the " c o r n e r s t o n e "
40
observance,
or it p l a y s t h e " c e n t r a l " r o l e
41
in
their
concluded
religious
that
ceremonies
the proof
by
and
practices.
the p l a i n t i f f s
The
reached
court
only
the
l e v e l o f " p e r s o n a l p r e f e r e n c e " r42
ather than convictions
" s h a r e d by a n o r g a n i z e d g r o u p . "
The court e x p l a i n e d ,
" ( t ) h e c l a i m of c e n t r a l i t y of t h e V a l l e y to t h e p r a c t i c e
o f t h e t r a d i t i o n a l C h e r o k e e r e l i g i o n , . . . is m i s s i n g
from this c a s e . The o v e r w h e l m i n g c o n c e r n of the a f f i a n t s
a p p e a r s to b e r e l a t e d to t h e h i s t o r i c a l b e g g i n g s o f t h e
C h e r o k e e s a n d t h e i r c u l t u r a l d e v e l o p m e n t . It is d a m a g e
to tribal and family f o l k l o r e and t r a d i t i o n s , more
than p a r t i c u l a r r e l i g i o u s o b s e r v a n c e s , which appears
to b e at stake'.'A3
Thus
the
tion
are vitally
interests
First
court
concluded,
important
protected
Amendment."
by
44
the
"(t)hough
to a n y
Free
cultural
group
Exercise
of
history
people
Clause
of
and
these
the
tradiare
not
Three
related
the f r a m e w o r k
F i r s t , to
does not
nor
for
for
an
were
First
to m e e t
is o r t h o d o x y
basically
analysis
qualify
have
but
tangental
reaffirmed
Amendment
46
Finally
in
outside
Sequoyah.
protection,
any o r g a n i z a t i o n a l
issue.
issues
a
religion
or d o c t r i n a l
Cherokee
45
test,
Indians
have
47
a religion
within
the meaning
Also, t h e r e s o l u t i o n
of
the
of
the
claim
First
related
Amendment.
to
the
American
R e l i g i o u s F r e e d o m A c t w a s b a s e d o 4n 8 a s p e c i f i c p r o v i s i o n
E n e r g y and W a t e r D e v e l o p m e n t B i l l ' w h i c h e x e m p t e d the
TVA
from
Che
requirements
Analysis
similar
to
of
"any other
Sequoyah
was
in
the
49
law."
followed
in
the
50
case, Badoni v. Higglnson.
Navajo
of
Indians
many
Navajo
National
Glen
to p r e v e n t
gods
Monument
Canyon
dam
Similarly
infringements
establish
Included
it
is
with
and
attempted
the
area
Navajo
element
of
their
to l i s t
entities
establish
and
that
"central"
by B a d o n i
the
the
Bridge
of
the
specific
here
sought
First Amendment
of
( 4 ) desecration
M o u n t a i n area for at
added
of
desecration
the o p e r a t i o n
following!
of
emotional
w e r e of
with
(3) p r e v e n t i o n
ceremonies;
to
and
in t h e R a i n b o w
the p l a i n t i f f s
is t h e
the drowning
(5) s e v e r e
efforts
destruction
areas
instructive
which
list
by t h e p l a i n t i f f s ;
religious
sacred
from
reservlor.
a violation
;
further
in c o n n e c t i o n
and
in t h e
sites;
and
Badonl arose
to
rights.
(i) d e s t r u c t i o n
recognized
as
plaintiffs
from
of
holy
sites
of
Importance
least
is t h a t
to
performing
by
formations
the p e o p l e
100 y e a r s . H o w e v e r
the
Indians
failed
Y
gods
tourists
spiritual d i s t r e s s . T h e
the geological
h o l
Navajos
in
of
the
to
the
-12-
demonstrate
practices
in a n y m a n n e r
in q u e s t i o n
of c o n s i s t e n c y w h i c h
a "vital
with
relationship
the N a v a j o
would
support
way
their
of
of
life
the
or
allegation
a
'history'
of
religious
52
use
of
Rainbow
Bridge
in r e c e n t
times."
that the p l a i n t i f f s had a t t e n d e d
there since 1965 and had v i s i t e d
This
of
weak showing
the
first
was not
The
record
indicated
o n l y n i n e r e l i g i o u s c e r e m o n i e s 59
the m o n u m e n t o n l y e l e v e n t i m e s .
sufficient
to m e e t
the
requirements
step.
Another
closely
aligned
case
is
that
of
the H o p i
Indian
54
Tribe
v. Block
of r e c r e a t i o n a l
Snow
The
Bowl
an
expansion
facilities
in
the area
located
case was
included
Involving
In t h e
a consolidated
the H o p i
Association
Coconino
Indian
as w e l l
as
two
and
to p r e v e n t
the e x p a n s i o n
sought
removal
the e x i s t i n g
of
The expansion
777 a c r e
area
Although
the
previously
it
in
Act
to
in a n y
is
this
and
the
75,000
in
Arizona.
which
Medicinemen's
Indian
The
plaintiffs
groups
also
facilities..
acre
the
area
area would
of
results
c a s e s , the case
consider
Arizona
plaintiffs
landowners.
recreational
parallels
discussed
The N a v a j o
if t h e A c t
the
case
is t h e f i r s t
Freedom
of
Forest
three
development
as the
the Navajo
private
sought
further
known
National
case with
Tribe
and
the
and
San
Francisco
analysis
is s i g n i f i c a n t
the a p p l i c a t i o n
Involve
of
the
of
to h a v e
Association
any meaning
then
brief
it m u s t
because
Religious
argues
that
require
" t h a t t h e d e f e n d a n t s t a k e t h e r e m e d i a55
l actions necessary
to s t o p t h i s a l l e d g e d i n f r i n g e m e n t . "
The d e f e n d a n t s
00109
Peaks.
the
detail.
Medicinemen's
a
-13-
basically
countered
the
Indians' argument
procedural
duties
set
out
in t h e a c t
the policy
behind
the A c t .
The
by r e l i a n c e
without
Court
upon
recourse
to
agreed.
" W h a t t h e p l a i n t i f f s h e r e a r e r e a l l y o b j e c t i n g t o is
n o t t h e r e v i e w p r o c e s s t h a t t o o k p l a c e p u r s u a n t to A I R F A ,
but t h e d e c i s i o n w h i c h w a s r e n d e r e d as a r e s u l t of i t .
H o w e v e r , the Court finds that A I R F A was never m e a n t
to h a v e s u c h a b r o a d i n t e r p r e t a t i o n . T h e A c t d o e s n o t
r e q u i r e t h a t a c c e s s to a l l p u b l i c l y o w n e d p r o p e r t i e s b e
p r o v i d e d to the I n d i a n s w i t h o u t c o n s i d e r a t i o n f o r o t h e r
u s e s o r a c t i v i t i e s , n o r d o e s it r e q u i r e t h a t N a t i v e
t r a d i t i o n a l r e l i g i o u s c o n s i d e r a t i o n s a l w a y s p r e v a i l to
t h e e x c l u s i o n o f a l l e l s e . It r e q u i r e s t h a t t h e a g e n c i e s
e v a l u a t e t h e i r p o l i c i e s w i t h t h e a i m of p r o t e c t i n g
Indian r e l i g i o u s f r e e d o m s , and that they not deny a c c e s s
t o t h e s a c r e d s i t e s , u s e a n d p o s s e s s i o6 n o f s a c r e d
o b j e c t s a n d t h e f r e e d o m to w o r s h i p . "
In
1982
three more
effort
at e s t a b l i s h i n g
of
Indians
the
the
three had
which would
chipping
rights
allow
away
at
the court
to
the
what
didn't
combination
substantive
the cases
In
in t h e
of
continued
for
eggregious
arduous
of
the
hurdles
of
safeguarded
House
None
of
circumstances
courts
kept
American
fashioned
assistance
are s i g n i f i c a n t
protection
religion.
v i c t o r y . The
earlier
Inupiat
a
predicate
promise
effectively
voiced
occur.
the
reflect
their
the a v a i l a b i l i t y
Clause
Congressmen
However
to e x e r c i s e
A c t , and
limit
Exercise
to
for a significant
the
Freedom
were
the necessary
the right
Religious
Free
cases
the
from
fears
by
the
of
debate.
in t h e p e r s p e c t i v e
Community
of
the Artie
of
Slope
57
v . United
States,
to
lands
retain
offshore
in
to the a r e a
tae
in a a r e a
the B e a u f o r t
on
the
theory
Inupiat
lying
and
people
tried
from
three
Chukchi
Seas.
that
their
to
a bold
65
They
religious
strike
miles
claimed
beliefs
rights
were
-14-
were
and
of
intertwined
their
the
these
with
subsistence
exploratory
generalized
balance
their
in t h e i r
of a c c e s s
hunting
gathering
area was negatively
58
activities
claims
any
Once
insufficient
favor. Here
without
and
also
affected
again
of
by
any
the court
to m e e t
and
the Inupiat
explanation
life-style
finds
strike
allege
the religious
a
denial
significance
59
of
the sites
Clearly
here
although
or any
the
the use
effectively
The
South
Dakota
ceremonial
and
two
for
and
the South
parking
Fish
employed
and
Indians
includes
v . Gullet**
place
Butte
stands
the r e l i g i o u s
leaders
Indians
of
and
object
or
to f u l l , u n r e s t r i c t e d and
of
are
of
region
State
Lakota
traditional
of
Specifically,
roads,
Department
their
access
for
redress
sought
by
the p l a i n t i f f s '
uninterrupted
religious
of
powerful
the
the
Indian
similar
two n a t i o n s .
regulate
the d e c l a r a t i o n
significance.
have
to c o n s t r u c t i o n
p u r p o s e s . The
more
of
the m o s t
by the
satisfied
and NorfchweSt
fi l
practices
these
as a t t e m p t s
ceremonial
as
The p l a i n t i f f s
to r e s t r i c t
worship
it b e e n
is u n i q u e
0
arguably
in t h e B l a c k H i l l s
as w e l l
and Parks
even
takes
spiritual
lots
is n o t
interference.
v. Peterson,
people.
Dakota
of
Association
where Bear
site
acts
the a r g u m e n t , had
cases, Crow
Crow
Tsistsistas
chiefs
to w h i c h
Protective
fact p a t t e r n s .
of
legal predicate
pursued, was
final
Cemetery
explanation
of
Game,,
the
"right
use of
the
62
Butte."
ments
The
listed
necessary
for the
by
significance
the plaintiffs
predicate
efforts
of
Crow
are perhaps
for u p h o l d i n g
which
is t h a t
the
the closest
the I n d i a n s
the park officials
specific
have
to
infringethe
claims
except
sought
to
-15-
minimize
and
the
and
park visitors.
following:
foot
of
paved
the B u t t e
lots, and
by
and
weighing
oust
The
to
include
this
reach
for
The
in t h i s
at
the
food
the
the
roads
and
being
of
and
religious
and
water
bothering
way
damaged
that
in
the
although
it
is
is c l e a r l y
injured
beliefs
is
step
emphasizes
their
to a s s u m e
the B u t t e
Quest
of
placed
that
the
upon
plaintiffs'
or p e n a l i z e d
has
The
at
by
that
their
been
unduly
which
religious
the
proof
religious
discussed
court
this
that
for
to a l l o w
analysis.
to e s t a b l i s h
their
first
r e l i g i o n , or
sufficient
that.
first hurdle
the failure
their
case
their
conduct
added)
u s e of
to o v e r c o m e
was
are
safe
level
Crow
the
case
they
was
the
of
and
the Vision
was just
of
interest
fairly
review
Indians
access
Exercise Clause
exercising
the
of
aspect
Free
tenets
of
is
of
that
that
the s e c o n d
success
Indians
includes
by t o u r i s t s w i t h
discussion
^(emphasis
it
plaintiffs
of
the
area
photographs, carrying
emphasis
the
course
Thus
the
state's
restricted."
of
of
"establish
in t h e
the c e r e m o n i a l
o f w o r s h i p e r s ' o f f er i n g s
definitive
the
adherence
by
infractions
construction
significant
test
mentioned.
of
uses
singers.
is n o
balancing
of
of
(2) I n t e r f e r e n c e
taking
The most
there
simultaneous
The list
through
the B u t t e , taking
prayers
the
(1) d e s e c r a t i o n
ceremonies
on
accommodate
at
However
established
the
ceremonies
the
the
by
to
beginning
plaintiffs
to
this
limited
new
hurdles
level.
the South
that
Dakota
Indians
the c o n s t r u c t i o n
practices
as
in
the p u r p o s e
fell
over
any
of
the
-16-
was
in p a r t
fact
that
Butte
to aid
there
for
Indian
was no
religious
the
actual
the
Indians.
testified
traffic
showing
purposes
construction
It w a s
as
the
significant
he
successfully
Quest
in s p i t e
of
the distractions
court
relied
actions
places
as
B a d o n i and
in
line
with
a duty
upon
a state
acts, not
to p r o v i d e
them out." ^^
The
the
not
the
stricture that
to k e e p
the m e a n s
significant
quoted
the
access
support
language
Vision
Crow
their
the "free
en^^nuent
to
Grover
The
exercise
from prohibiting
or the
to
ceremonial
6
to
the
plaintiff
by t o u r i s t s . ^
them
to
during
denied
that
completed
quoted
of a c c e s s
restrictions
limited
that
on
s i t e , added
of a d e n i a l
merely
also
to t h e
clause
religious
for
carrying
in B a d o n i w a s
as
follows:
" ( t ) h e F i r s t A m e n d m e n t p r o t e c t s o n l y a g a i n s t a c t i o n by
t h e g o v e r n m e n t , t h o u g h e v e n t h e n , n o t in a l l c i r c u m s t a n c e s ; b u t it g i v e s n o o n e t h e r i g h t to i n s i s t t h a t
in t h e p u r s u i t o f t h e i r o w n I n t e r e s t s o t h e r s m u s t
c o n f o r m t h e i r c o n d u c t to h i s o w n r e l i g i o u s n e c e s s i t i e s
. . . . We must accommodate our idiosyncracies, r e l i g i o u s ,
a s w e l l a s s e c u l a r , to t h e c o m p r o m i s e s n e c e s s a r y in
c o m m u n a l l i f e ( C i t e s o m i t t e d . ) W e r e it o t h e r w i s e , t h e
M o n u m e n t 6w7 o u l d b e c o m e a g o v e r n m e n t - m a n a g e d r e l i g i o u s
shrine."
The court
also
State
a "compelling"
for
of
had
buttressed
en^To^nmental
Indians
the "least
minimum
The
and
and
restrictive
situation
construction
of
position
interest
from
finding
that
the
r e a s o n s , and
the areas
means"of
by
in c o m p l e t i n g
administrative
visitors
conflict.
its
construction
the
for a limited
effecting
the goal
the
exclusion
time
was
with
68
in N o r t h w e s t
a paved
road
Indian
necessary
Cemetery
for
also
centered
the adoption
and
around
-17implementation
National
Forest
reaffirmed
this
of
a forest
management
plan
in C a l i f o r n i a . N o r t h w e s t
the p r i n c i p l e s
of
Crow
and
the
in
the
Six
Rivers
Indian
Cemetery
simply
cases
surveyed
in
discussion.
One
others
important
was
the
concept
conflict
raised
between
the Establishment
Clause.
conflict
not directly
although
nonetheless
relevant
and
in C r o w
the Free
A brief
of
V. Establishment
The
conflict
Religious
Freedom
Amendment
has
Congressman
with
Act
often
stated
the
and
Free
as
Exercise
in t h i s
of
the
Clause
and
of
this
survey
is
mention.
Clause
Exercise
Clause,
the E s t a b l i s h m e n t
be r a i s e d .
several
consideration
at point
worthy
and
In
the
Clause
the House
American
of
the
First
debate, one
follows:
" I m i g h t p o i n t o u t t h a t a r t i c l e I of t h e U . S . C o n s t i t u t i o n
p r o v i d e s that Congress shall m a k e no law r e s p e c t i n g the
e s t a b l i s h m e n t of a r e l i g i o n or p r o h i b i t i n g the f r e e
e x e r c i s e t h e r e o f a n d y e t t h i s r e s o l u t i o n g o e s o n to do
j u s t t h a t by h a v i n g t h e U n i t e d S t a t e s p r o t e c t a n d p r e s e r v e
a r e l i g i o n for a p a r t i c u l a r s e c t . "
In B a d p y i
the
court
reasoned
exclude touristscompletely
violation
court
of
the
concluded
either
that
the purpose
religious
The
ts
test
foHows :
"should
operation
solely r e l i g i o u s , and
the
from
Establishment
discontinue
expansion,
that
would
the M o n u m e n t
of
the d e f e n d a n t s
of
the
for a violation
Snow
o£
would
effect
Indian
be
Bowl
n o t be s e c u l a r
the
which
sought
be a
clause.Similarly,
its p r i m a r y
Interests
regulations
be
plaintiffs.
the Establishment
to
Block
to
or p r o h i b i t
but would
would
clear
the
forced
to
its
be
advance
1
Clause
is
-18-
" w h a t are t h e p u r p o s e and the p r i m a r y e f f e c t of the
enactment?
If e i t h e r is t h e a d v a n c e m e n t o r i n h i b i t i o n
of r e l i g i o n t h e n the e n a c t m e n t e x c e e d s the s c o p e of
l e g i s l a t i v e p o w e r as c i r c u m s c r i b e d by the C o n s t i t u t i o n .
T h a t is to s a y t h a t to w i t h s t a n d t h e s t r i c t u r e s o f t h e
E s t a b l i s h m e n t C l a u s e there must be a s e c u l a r legisl a t i v e p u r p o s e and a p r i m a r y e f f e c t t h a t n e i t h e r
advances nor inhibits r e l i g i o n . " 7 2
V I . In P e r s p e c t i v e :
The courts*
so> f a r
is a b o u t
Indian
pueblos
$125 million
The
1 h miles
with
lead
contributed
will
New
another
Mexico
cases
the
74
development
60-cubic
mile
Widespread
is e s t i m a t e d
the
which
accompanied
More
Energy
to
reservior
development
discussed
of
proposed
Jemez
approximately
project
impacts. ^
been
coalition
in t h e
to c o v e r
7
of
have
a
development
development
the D e p a r t m e n t
which
to c h a l l e n g e
is a p i l o t
cultural
Mountains
test when
rally
energy
18 w e l l s ,
by
tap
in t h e
project, scheduled
and
the m o u n t a i n s .
for
of
face
to e x t e n s i v e
en^io^ihmental
that
to
geothermal
Mountains.
would
approach
The Jemez
successful
with
than
the
if
severe
$50 m i l l i o n
50-megawatt
of hot w a t e r
1,000
and
being
project
under
is f o r e s e e n a s t h e
to be b e t w e e n
is
3,000
potential
megawatts,
75
which
would mean
The
Jemez
seven
groups
Mountains
religious
and
between
are
enviornmental
Religious
the
of
Is c l e a r
that
the
the g o v e r n o r of
range
Jemez
the
to
surveyed
Santa
which
try
to
g r o u n d s . As
Freedom
Indians
the
60 5 0 - m e g a w a t t
of P u e b l o s
cxpected
the American
criteria
20 and
A c t and
cases must
face
Clara
border
plants
the
challenge
to
the
lands
of
on
the v i o l a t i o n
of
Free
Clause,
Exercise
task. Paul
and
talk about
it
Tafoya,
P u e b l o , said, "The whole
is s a c r e d . T h a t ' s w h y s o m76
any people
M o u n t a i n s as o u r c h u r c h . "
the
the project
be established
a formidable
altogether.
the
mountain
-19Among
the
rely
upon
will
include
in s e e k i n g
affecting
the area
the
the
and
ultimately
of
specific
to
assert
following:
balance
the
of
of
of
geothermal
fluids, and
disruption
and
the Pueblos
a constitutional
the
land
leading
l o s s of
the ability
layers
which
the
noise
to
the a b a n d o n m e n t
ceremonial
sulfide
pollution;
d i s t r e s s , and
deterioration
to e x e r c i s e
of h y d r o g e n
sites
their
religion
with
and
of
resulting
gas, releases
(2) s o c i a l
interference
may
violation
(1) e n v i o r n m e n t a l
subsequent
In l o s s
dispersion
infringements
because
of
economic
current
land
77
use practices
and
recreational
The d i f f i c u l t y
in e s t a b l i s h i n g
at t h e
an u n d u e
necessitated
some
some worship
ceremony
of
life, rather
to p r e s e r v a t i o n
stage
it
burden
of
some
their
is d o u b t f u l
they were
they
government
could
to j u s t i f y
the d e v e l o p m e n t
it
establish
crunch. Thus unless
more
teeth
to
plight
their
to
the
of
the
trend
as
the P u e b l o
rights
in
land
from
by
the
they
are
simply
their
this
probable
that
the
to
Interest
the
the American
drawn.
the
appeals
if
they
exists
nation's
legislative
by
way
related
first
their
00106
of
this
federal
of
from
is
has
over
is b l e a k
the e n j o y m e n t
which
get
statement
Indians
is
a compelling
of
which
t r a d i t i o n s . At
a further
claim
or prohibition
a response
the policy
set
or
could
that
religion
inseparable
is h i g h l y
F r e e d o m A c t , or a d e f i n i t i v e
reverses
the Pueblos
their
which
culture
that
of
interference
belief
if
gives
on
or practice
s t e p . But
energy
threshold
physical
than
areas.
response
Religious
Supreme
courts
seek
religious
to
Court
the
assert
freedom
linked
-20VII.
The
of
feeling
of o p t i m i s m
the American
have
stripped
Relgious
ita
to
to d e n y
and
and
relief
to
top of
the m o u n t a i n .
Indian
shares
with
of
religion
his
oriented
society.
obligation
move
if o u r
cannot
pick
to g i v e u p
to
our
Indian
The
which
has
in
the
faded
The
acceptance
as c o u r t
decisions
long-held
of
Indian
special relationship
which
the
strength
intolerant
are non-Indians
brothers. Most
is d e s t r o y e d ,
quest
religions
climb
is
their
enactment
to
by an
a n d m o v e . In o r d e r
their
after
support.
Indians
denied
"We who
enviornment
up
land
has been
Act
l a c k of
the
the
promise
Freedom
substantive
l a c k of u n d e r s t a n d i n g
continues
Conclusion
have
of u s
but
to m o v e ,
c u l t u r e , r e l i g i o n , and
our
a
can
and
the
source
progressspecial
pick
Indian
up
and
friends
they would
independence."
have
78
APPENDIX
Public
95th
Law
I
95-341
Congress
Joint
American
Resolution
Indian
Religious
Freedom
W h e r e a s t h e f r e e d o m of r e l i g i o n f o r a l l p e o p l e is an i n h e r e n t
r i g h t , f u n d a m e n t a l to t h e d e m o c r a t i c s t r u c t u r e o f t h e U n i t e d
S t a t e s a n d is g u a r a n t e e d b y t h e F i r s t A m e n d m e n t of t h e U n i t e d
States Constitution;
W h e r e a s the United States has t r a d i t i o n a l l l y rejected the c o n c e p t
of a g o v e r n m e n t d e n y i n g I n d i v i d u a l s t h e r i g h t to p r a c t i c e t h e i r
r e l i g i o n a n d , as a r e s u l t , has b e n e f i t e d from a rich v a r i e t y
o f r e l i g i o u s h e r i t a g e s in t h i s c o u n t r y ;
W h e r e a s t h e r e l i g i o u s p r a c t i c e s o f t h e A m e r i c a n I n d i a n (as w e l l
a s N a t i v e A l a s k a n a n d H a w a i i a n ) a r e a n i n t e g r a l p a r t of t h e i r
c u l t u r e , t r a d i t i o n and h e r i t a g e , such p r a c t i c e s f o r m i n g the
b a s i s of I n d i a n i d e n t i t y and v a l u e s y s t e m s ;
W h e r e a s t h e t r a d i t i o n a l A m e r i c a n I n d i a n r e l i g i o n s , a s an i n t e g r a l
p a r t of I n d i a n l i f e , a r e i n d i s p e n s a b l e a n d i r r e p l a c e a b l e ;
W h e r e a s t h e l a c k of a c l e a r , c o m p r e h e n s i v e , a n d c o n s i s t e n t
F e d e r a l p o l i c y h a s o f t e n r e s u l t e d in t h e a b r i d g m e n t of r e l i g i o u s
freedom for traditional American Indians;
W h e r e a s s u c h r e l i g i o u s i n f r i n g e m e n t s r e s u l t f r o m the l a c k of
k n o w l e d g e o r t h e i n s e n s i t i v e and i n f l e x i b l e e n f o r c e m e n t of
F e d e r a l p o l i c i e s a n d r e g u l a t i o n s p r e m i s e d o n a v a r i e t y of l a w s ;
Whereas such laws were designed for such worthwhile purposes
as c o n s e r v a t i o n and p r e s e r v a t i o n of n a t u r a l s p e c i e s and
r e s o u r c e s b u t w e r e n e v e r i n t e n d e d t o r e l a t e to I n d i a n
religious practices and, therefore, were passed without
c o n s i d s r a t i o n of t h e i r e f f e c t on t r a d i t i o n a l A m e r i c a n I n d i a n
religlons;
W h e r e a s such laws and p o l i c i e s often deny A m e r i c a n Indians a c c e s s
to s a c r e d s i t e s r e q u i r e d in t h e i r r e l i g i o n s ^ i n c l u d i n g c e m e t e r i e s ;
W h e r e a s s u c h l a w s at t i m e s p r o h i b i t t h e u s e a n d p o s s e s s i o n o f
s a c r e d o b j e c t s n e c e s s a r y to t h e e x e r c i s e of r e l i g i o u s r i t e s
and c e r e m o n i e s ;
W h e r e a s t r a d i t i o n a l American Indian c e r e m o n i e s have been intruded
u p o n , i n t e r f e r e d w i t h , a n d in a f e w i n s t a n c e s b a n n e d : N o w t h e r e f o r e , b e it
R e s o l v e d b y t h e S e n a t e a n d H o u s e of R e p r e s e n t a t i v e s of t h e U n i t e d
S t a t e s of A m e r i c a in C o n g r e s s a s s e m b l e d . T h a t h e n c e f o r t h it s h a l l
be t h e p o l i c y o f t h e U n i t e d S t a t e s to p r o t e c t a n d p r e s e r v e f o r
A m e r i c a n I n d i a n s t h e i r i n h e r e n t r i g h t of f r e e d o m t o b e l i e v e ,
e x p r e s s , a n d e x e r c i s e t h e t r a d i t i o n a l r e l i g i o n s of t h e A m e r i c a n
I n d i a n , E s k i m o , A l e u t , and N a t i v e H a w a i i a n s , i n c l u d i n g but n o t
l i m i t e d to a c c e s s to s i t e s , u s e a n d p o s s e s s i o n o f s a c r e d o b j e c t s ,
a n d the f r e e d o m to e o r s h i p t h r o u g h c e r e m o n i e s and t r a d i t i o n a l
APPENDIX
(con't)
S E C . 2 . The P r e s i d e n t shall direct the v a r i o u s F e d e r a l
d e p a r t m e n t s , a g e n c i e s , and o t h e r i n s t r u m e n t a l i t i e s r e s p o n s i b l e
f o r a d m i n i s t e r i n g r e l e v a n t l a w s to e v a l u a t e t h e i r p o l i c i e s
a n d p r o c e d u r e s in c o n s u l t a t i o n w i t h n a t i v e t r a d i t i o n a l
r e l i g i o u s l e a d e r s in o r d e r to d e t e r m i n e a p p r o p r i a t e c h a n g e s
n e c e s s a r y to p r o t e c t a n d p r e s e r v e N a t i v e A m e r i c a n r e l i g i o u s
c u l t u r a l r i g h t s and p r a c t i c e s . Twelve m o n t h s a f t e r a p p r o v a l
of t h i s r e s o l u t i o n , the P r e s i d e n t s h a l l r e p o r t b a c k to the
C o n g r e s s t h e r e s u l t s of h i s e v a l u a t i o n , i n c l u d i n g any
c h a n g e s w h i c h w e r e m a d e in a d m i n i s t r a t i v e p o l i c i e s a n d p r o c e d u r e s
and any r e c o m e n d a t i o n s he may have for l e g i s l a t i v e a c t i o n .
ENDNOTES
1. C r a b t r e e , Book
2. Young, Book
3 . i d . at
Review, 8 American
Review, 8 American
Indian
Indian
L.R.
197
(1980).
L.R. 491, 495-496
(1980).
491.
4 . H a r r i s , The A m e r i c a n Indian R e l i g i o u s F r e e d o m Act and Its
P r o m i s e , 5 A m e r i c a n I n d i a n J o u r n a l ~ T T ('j 97 9 ) . ( h e r e i n a f t e r
r e f e r r e d to a s P r o m i s e )
5 . B a r r y , T h e E n e r g y D r i v e F i n d s R e s i s t a n c e in t h e J e m e z
M o u n t a i n s , 6 A m e r i c a n I n d i a n J o u r n a l 19 (1 9 8 0 ) . ( h e r e i n a f t e r
r e f e r r e d to a s J e m e z MouriTTalns)
~
6 . S t u d i e s in A m e r i c a n
the American Indian
7. Promise
at
8.
Cong. Index
1977-78
9. I d . at
10.
Id
11.
Id
12.
Id
Indian
in t h e
Law,
F r e e d o m of R e l i g i o n for
T w e n t i e t h C e n t u r y 2 8 5 , 293 ( 1 9 7 0 ) .
8.
(CCH)
16001
20,540.
1 3 . H . R . R e p . N o . 9 5 - 1 3 0 8 , 9 5 t h C o n g . , 2 n d S e s s . 1 , r e p r i n t e d in
197 8 "UTS". C o d e C o n g . & A d . N e w s 1 2 6 2 , 1 2 6 2 ( h e r e i n a f t e r R e p o r t )
1 4 . H o p i Indian T r i b e v . B l o c k , NoS.81-0481 , 8 1 - 0 4 9 3 , 8 1 - 0 5 5 8
s l i p , o p ( U . 8 . D . C . J u n e 1 2 , 1981 and J u n e 1 5 , 1981)
( a v a i l a b l e on L E X I S , G e n f e d l i b r a r y , C a s e s f i l e ) , ( h e r e i n a f t e r
r e f e r r e d to a s H o p i )
1 5 . _S. J . _ _ R e s . 1 0 2 , A u g . 1 1 1 9 7 8 , P
( c o d i f i e d in p a r t a t 42 U . S . C . A . i " 1 9 9 6
16. Report
17. Promise
18.
Stat. 469
—
2-3.
at
7.
Id.
1 9 . _Id. at
20.
at
9 5 - 3 4 1 , 92
& note).
124
10.
Cong. Rec. 21445
(1978)
(statement
of
Sen.
Badham).
21.
124
C o n g . Rec
22. Report
23. Id.
24.
at
(1978).
1.
at.3.
124 C o n g .
2 5 . 620
21444
Rec. 21446
F.2d
1159
26. TVA v . Hill
(1978)
(statement
of
Sen.
Roncalio).
(1980).
437
U.S.. 1 5 3 , 1 5 7
(1976).
2 7 . I d . Q u o t i n g H e a r i n g on P u b l i c W o r k s f o r P o w e r a n d E n e r g y
R e s e a r c h A p p r o p r i a t i o n B i l l , 1 9 7 7 , b e f o r e a S u b c o m m i t t e e of
t h e H o u s e C o m m i t t e e on A p p r o p r i a t i o n , 9 4 t h C o n g . , 2d S e s s . .
pt 5 , p 261 ( 1 9 7 6 ) .
2 8 . 437
U . S . at
29. Sequoyah
3 0 . 620
v.
F.2d
at
158.
TVA
480
F.Suppp
608, 610
(1979).
1160.
3 1 . Id_.
32.
Id.
33. 480
F.SUpp
at
612.
3 4 . ^Id.
3 5 . 620
F.2d
at
1164.
36. 406
U.S. 205
3 7 . 620
F.2d
at
1163.
F.2d
at
1164.
(1972).
38. ^ i z
3 9 . 620
40. Frank v. Alaaka
604 P . 2 d
41. People v . Woody
61 C a l . 2 d
4 2 . 620
43.
F.2d
at
1164.
Id.
0010,
1068
(Alaska
7 1 6 , 40
1979).
Cal.Rptr.
6 9 , 3 94 P . 2 d
813
(1964
4 4 . 620
F.2d
45.
at
at
1165.
1163.
46. ^ d .
47.
Id.
Pub- L a w N o .
96-69, signed
by P r e s i d e n t
Carter
on
T57T?79.
4 9 . 620 F.2d
at
50. 638
172
F.2d
1161.
(1980).
51. Badoni v. Higginson
5 2 . J[£. a t
455
646.
53. Id.
5 4 . H o p i at n o t e
14.
5 5 . Id.
56. Id.
57. 548
F.Supp
182
(1982)
5 8 . I d . at
188-189.
59.
at
188.
60. 541
F.Supp
785
(1982)
6 1 . 552
F.Supp
951
(1982)
62. 541 F.Supp
at
788.
63. Id.
6 4 . Id_. a t
790-791.
65. I d . at
792.
6 6 . I d . at
791.
6 7 . I d . at
792.
68. Id.
F.Supp
6 4 1 , 644
(1977).
September
69.
124
7 0 . 638
Cong. Rec
F.2d
at
7 1 . H o p i at n o t e
7 2 . 638
F.2d
73. Jemez
at
2 1446
(1978)
179.
14.
179.
Mountains
at
19.
74. Id.
7 5 . I d . at 22
76.
at 20
7 7 . I d . at 2 1
7 8 . I d . a t 22
00I?3
(statement
o f\Sen
Bonker) .