Treaty Rights and Sovereignty: Upholding Indigenous Religious Freedoms Through Legal Frameworks
The treaty rights of Native American tribes are recognized and upheld by the principle that treaty rights are supreme law of the land in the United States. This is grounded in the Supremacy Clause found in the U.S. Constitution (U.S. Const. art. VI, cl. 2) and affirmed by numerous Supreme Court cases, including Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), which specifically addressed the sovereignty of Native American tribes and their rights under treaties made with the United States, by affirming that state laws do not extend into tribal lands.
In the case of the hypothetical Treaty of Sacred Mountain, the United States possesses the inherent obligation to uphold the treaty. The explicit reservation by the Sacred Mountain Tribe of the right to "possess exclusively the peak during the month of the height of summer for religious observance" as per the Treaty of Sacred Mountain, Article 10, is a clear expression of an intention to protect certain uses of the land that are of cultural and religious importance to the tribe.
Given that Sacred Mountain was established as a national park in 1936, this places it within the jurisdiction of the National Park Service (NPS), which is tasked with preserving natural and cultural resources while providing for public enjoyment of these resources. The NPS has the authority to regulate the use of national parks to fulfill these objectives, including restricting activities that threaten cultural or natural resources or the purposes for which a park was established. See: 54 U.S.C. §§ 100101, 100751
In its enforcement of the treaty, the United States is presented with the issue of protecting Indian’s free exercise of religion, and the constraint of the establishment clause. (Royster, Blumm, Kronk Warner and Mills, 2023, p. 11)
This is exemplified within Lyng v. Northwest Indian Cemetery Protective Association (1988), where the Supreme Court faced a challenge regarding a road construction project through a sacred site used by several Native American tribes for religious purposes. The court held that while the government's action of building a road through the sacred site could indeed have severe adverse effects on the religious practices of the Native American tribes, such government actions did not violate the First Amendment's free exercise clause.
Despite the ruling in Lyng v. Northwest Indian Cemetery Protective Association (1988), the importance of respecting tribal sovereignty and treaty rights remains paramount. In fact, in the lower court’s holding, the court upheld the arguments made by various petitioner’s regarding the destruction of the sacred site. The court acknowledged the profound impact that the road construction would have on the spiritual practices of the Native American tribes involved.
Analyzing Lyng v. Northwest Indian Cemetery Protective Association (1988) further, there were no treaty rights and obligations at controversy, which serves as a distinct contrast to cases where treaty rights explicitly come into play. Given that there is a treaty relationship between the Sacred Mountain Tribe and the United States, the United States possesses an inherent obligation to uphold the treaty.
For enforcement purposes, the American Indian Religious Freedom Act of 1978 (AIRFA) provides support for the Sacred Mountain Tribe, as it reflects a broader policy of respecting and protecting Native American religious practices. Through AIRFA, the U.S. government should accommodate and protect the treaty rights of the Sacred Mountain tribe.
Beyond the inherent treaty obligations on behalf of the United States, certain legal precedents and authorities provide for protecting the Sacred Mountain Tribe's right to exclusive, temporary possession of the peak for religious observance.
In Bear Lodge Multiple Use Association v. Babbitt (D. Wyo. 1998), aff'd (10th Cir. 1999) a dispute over climbing practices at Devils Tower National Monument emerged, which is sacred to several Native American tribes. This precedent suggests that while outright bans may be legally contentious, the Park Service has the authority to manage activities to protect religious observances.
Executive Order 13007, 61 FR 26771 (1996), issued by President Clinton, directs federal agencies to accommodate access to and ceremonial use of Indian sacred sites by religious practitioners and to avoid adversely affecting the physical integrity of such sites. This Executive Order reflects a policy of respecting and protecting access to sacred sites on federal lands, reinforcing the importance of considering the religious significance of these areas in federal land management decisions.
In sum, to protect the tribe's treaty right to exclusive, temporary possession of the Sacred Mountain peak for religious observance, the Park Service should prohibit non-tribal members from engaging in activities on the peak during July. This action is supported by the treaty itself, the constitutional status of treaties, and the federal government's commitment to preserving Native American cultural and religious practices, as well as the statutory authority of the NPS to manage and protect national parks.
Reference:
Bear Lodge Multiple Use Association v. Babbitt, 2 F. Supp. 2d 1448 (D. Wyo. 1998), aff'd 175 F.3d 814 (10th Cir. 1999) [Bear Lodge II].
Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).
Prucha, F. P. (1986). The Great Father: The United States Government and the American Indians. University of Nebraska
Royster, J. V., Blumm, M. C., Kronk Warner, E. A., Mills, M. (2023). Native American natural resources law: Cases and materials (5th ed.). Carolina Academic Press.
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
U.S. Const. art. VI, cl. 2