1. Cohen, F., Handbook of Federal Indian Law v (1982 ed.)Google Scholar.

2. See the revised handbook for details. Cohen, F., Handbook of Federal Indian Law (1982 ed.)Google Scholar.

3. Cohen, F., Handbook of Federal Indian Law x (1982 ed.)Google Scholar.

4. Id.

5. Act of Aug. 11, 1978, Pub. L. No. 95-341, 92 Stat. 469 (1978) (codified in part as 42 U.S.C. § 1996). In AIRFA Congress resolved that “it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise [their] traditional religions …” (42 U.S.C. § 1996).

6. The Supreme Court capped previous judicial interpretations of the possible substantial impact of AIRFA in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S.—, 108 S. Ct. 1319 (1988) (herinafter referred to as Lyng. All citations to Lyng will be to the Supreme Court Reporter.) The Court stated categorically that “[n]owhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.” 108 S. Ct. at 1328.

The D.C. Circuit Court, on the basis of AIRFA, remanded for further procedural consideration the Interstate Commerce Commission's approval of a rail line in Navajo country, because the Commission had not properly considered evidence that the railroad permittee would not fulfill its promise to protect Navajo sacred sites alongs its right-of-way. New Mexico Navajo Rancher's Ass'n v. Interstate Commerce Commission, 702 F.2d 227 (1983).

For a fuller treatment of the history and implementation of AIRFA see Michaelsen, R., We Also Have a Religion: The Free Exercise of Religion among Native Americans, 7 American Indian Quarterly 111 (1983)CrossRefGoogle Scholar.

The religion clauses of the first amendment provide that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …”

7. See infra, notes 43-46 and accompanying text.

8. Bowen v. Roy, 476 U.S. 693 (1986)Google Scholar (governmental requirement of the use of a Social Security number to receive certain welfare benefits does not abridge the Free Exercise Clause. This case is discussed infra in text accompanying notes 66-73); Employment Div., Dep't of Human Resources of the State of Oregon v. Smith, 108 S. Ct. 1444 (1988) (Oregon Supreme Court decision that State denial of unemployment compensation to Smith and Black because they had been fired for ingesting peyote in a service of the Native American Church “significantly burdened their religious freedom” remanded for finding whether the use of peyote is illegal in Oregon); and Lyng, cited supra note 6 (Indian claim that completion of a road through the Six Rivers National Forest burdened their religious freedom by destroying the pristine character of the sacred areas denied).

9. Supra note 6.

10. D. Theodoratus, Report for U.S. Dept. of Agriculture, Forest Service, On Cultural Resources of The Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest at 420 (April 9, 1979). For the Forest Service's analysis of responses to and possible effects of the proposal, see the Final Environmental Impact Statement, Gasquet-Orleans Road, Chimney Rock Section, Del Norte County, CA, U.S. Dept. of Agriculture, Forest Service, Pacific Southwest Region, San Francisco, at 52 and 89. USDA-FS-RF-FEIS-81 (Mar. 2, 1982).

11. Transcript of Trial, Northwest Indian Cemetery Protective Ass'n v. Peterson, 64, 77, 239. No. C-8204049 SAW (N.D. Cal. March 14, 15, 1983).

12. Id. at 74.

13. Sacred Space, 12 Encyclopedia of Religion (1987), 526-535, 526. See Eliade, M., The Sacred and the Profane: The Nature of Religion 20–67 (1961)Google Scholar, and Berndt, R., The Sacred Site: The Western Arnhem Land Example (1969)Google Scholar.

14. Sacred Space, supra note 12, at 528. Recent views of wilderness in America offer perhaps the most apt analogy (outside phenomena associated with traditional religion) for understanding the possible sacrality of place and the consequent power (or benefit) flowing therefrom. As defined in the Wilderness Act of 1964, 16 U.S.C. § 1131, wilderness is “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Wilderness is contrasted with “those areas where man and his own work dominate the landscape.” In this separate area, as the language of the act puts it, one is generally affected “primarily by the forces of nature,” as against those of the secular city, and “has outstanding opportunities for solitude…” Id. See Graber, L., Wilderness as Sacred Space (1976)Google Scholar, and Michaelsen, , Sacred Land in America: What is it? How can it be Protected?, 16 Religion 249–68 (1986)CrossRefGoogle Scholar.

15. Transcript of trial, supra note 10, at 247.

16. Northwest Indian Cemetery Protective Ass'n v. Peterson, 565 F. Supp. 586, 594-95 (N.D. Cal. 1983).

17. Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688 (9th Cir. 1986). While the appeal was pending Congress enacted the California Wilderness Act of 1984, Pub. L. 98-425, 98 Stat. 1619, in which much of the area under litigation was designated as wilderness and hence not open for commercial exploitation. However, the statute did exempt a narrow strip of land leaving the way open for the completion of the G-0 Road.

18. 406 U.S. 205 (1972) (State compulsory education law requiring formal education until age 16 found to abridge Amish respondents' free exercise of religion).

19. Id. at 218.

20. Northwest Indian Protective Ass'n v. Peterson, 565 F. Supp. at 594, citing Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th cir. 1980), cert, denied, 449 U.S. 953 (1980) and Hopi Indian Tribe v. Block, 8 ILR 3073, 3075 (D.D.C. June 15, 1981).

21. 795 F.2d 688, at 692.

22. After acknowledging that alteration of the sites might even have a devastating effect on the religion of the Indian complainants the Court, failing to find any basis for making a judgment about either the likelihood or the legality of such an outcome, punted. “However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires,” the Court explained. Governmental activities may be regarded as essential or inimical to sincerely held religious beliefs. But the “Constitution does not, and the courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent it is feasible, is for the legislatures and other institutions.” 108 S. Ct. at 1327.

23. Id. at 1323.

24. Id. at 1325.

25. The doctrine of “compelling state interest” was introduced into free exercise litigation in Sherbert v. Verner, 374 U.S. 389 (1963) (State's denial of unemployment compensation to a Seventh Day Adventist because she refused to work on the Sabbath held to be an unconstitutional abridgement of her free exercise rights). The Court held in that case that the state had not demonstrated an interest in the uniform application of unemployment compensation regulations and the avoidance of fraud of sufficient weight or persuasiveness to override Mrs. Sherbert's free exercise rights. Consideration of this doctrine has typically followed assessment of the authenticity of the claimant's religious position and determination whether that position is threatened by the challenged governmental action.

26. Lyng, 108 S. Ct. at 1330 (emphasis added).

27. Sequoyah v. TVA, 620 F.2d 1159. See supra note 20 for full citation.

28. Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), cert, denied, 452 U.S. 954 (1981).

29. Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert, denied, 464 U.S. 956 (1983).

30. Fools Crow v. Gullet, 706 F.2d 856 (8th Cir. 1983), cert, denied, 464 U.S. 977 (1983).

31. See Michaelsen, cited supra note 6, 130-35, for a discussion of these cases.

32. 108 S. Ct. at 1327.

33. Id.

34. Id.

35. Id.

36. Id. at 1325, quoting Roy, 476 U.S. at 699-700.

37. 108 S. Ct. at 1326. In a paragraph immediately before this statement, however, the Court refers to “incidental effects” of the proposed action. Id. at 1326. The majority obviously had reached no firm conclusion about the seriousness or extent of the effects of the proposed governmental action in this case.

38. Id. at 1330.

39. Id. at 1337.

40. But see Way, and Burt, , Religious Marginality and the Free Exercise Clause, 77 Am. Pol. Sci. Rev. 652 (1983)CrossRefGoogle Scholar, who document the increasing success of “marginal religious groups” in litigation involving the Free Exercise Clause. It is possible, however, that the Court is losing its taste for such cases and whetting its appetite instead on governmental interests and majoritarian claims.

41. Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940) and West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Note, for example, general reaction to the public fuss over the pledge of allegiance during the 1988 presidential campaign.

42. Sherbert v. Verner, 374 U.S. 398 (1963) and Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707 (1981).

43. Wisconsin v. Yoder, 406 U.S. 205 (1972).

44. 108 S. Ct. at 1328.

45. Id. at 450, quoting the regional forester.

46. Supra notes 5 and 6 and accompanying text.

47. Supporters of a more rigorous implementation of AIRFA vented their frustrations and called for congressional action in a hearing before the House Subcommittee on Civil and Constitutional Rights in 1982, but without apparent effect. See Indian Religious Freedom Issues. Hearings On S. J. Res. 102 Before the Subcomm. on Civil and Const. Rights of the Comm. on the Judiciary, House of Reps., 97th Cong., 2d Sess. (June 10, 1982).

The most recent efforts to give AIRFA more muscle center in a measure introduced by Senator Alan Cranston of California which specifies that AIRFA be amended to include the following provisions:

Sec. 3. (a) Except in cases involving compelling governmental interests of the highest order, Federal lands that have been historically indispensable to a traditional America [sic] Indian religion shall not be managed in a manner that would seriously impair or interfere with the exercise or practice of such traditional American Indian religion.

(b) United States district courts shall have the authority to issue such orders as may be necessary to enforce the provisions of this section. S. 2250. Congressional Record—Senate, S. 3634, March 31, 1988. It is not clear what impact the Court's decision in Lyng might have on this proposed legislation. However, Lyng, which was decided on April 19, 1988, hung like a cloud over the hearing on S. 2250 which was held less than a month later. Improvement of the American Indian Religious Freedom Act. Hearing on S. 2250 before the Select Comm. on Indian Affairs, U.S. Senate, 100th Cong., 2d Sess. (May 18, 1988). It is also noteworthy that the Reagan administration strongly opposed S. 2250 at that hearing.

48. See Gill, S., Native American Religions: An Introduction, (1982) ch. 6 on Tradition and Change in Native American ReligionsGoogle Scholar.

49. Malbin, M., Religion and Politics: The Intentions of the Authors of the First Amendment 19 (1978)Google Scholar. Malbin advances the view that Supreme Court free exercise interpretation has recently gone beyond the intentions of the authors of the first amendment by granting special treatment to religious claims.

50. On the concept of “preferred freedoms” see Abraham, H., Freedom and the Court: Civil Rights and Liberties in the United States, (4th ed. 1982), 15–21 and ch. II generallyGoogle Scholar. “Basic freedoms” is another employed designation. The concept encompasses the freedoms articulated in the first amendment: religion, speech, press, assembly and petition. Such freedoms, the Court has come to hold, cannot be abridged except in the presence of “clear and present danger” to the public welfare. Schenk v. United States, 249 U.S. 47 (1919) (Conviction of Schenk and associates for distribution of literature to conscripts urging them to disobey the Conscription Act upheld on the ground that their act, committed during war time, represented a “clear and present danger” which overrode their free expression rights). The “clear and present danger” test, which is a balancing test, has tended to fade with the rise of the similar but broader test of “compelling state interest.” See infra, note 54 and accompanying text, and Kauper, P., Religion and the Constitution 39 (1964)Google Scholar.

51. See, e. g., Kauper, cited in note 49, who maintains that “religious liberty is … an independent substantive liberty, having its own purpose, content, and dimension and existing apart from the other commonly recognized guarantees of free speech, free press, and freedom of assembly” and, as such, “may either require or permit preferential treatment on religious grounds,” at 15 and 17. In contrast see Kurland, P., Religion and the Law: of Church and State and the Supreme Court 16–18 (1962)Google Scholar, who maintains that religious liberty does not enjoy an independent status, that it is a basic expression which is encompassed in the freedom of speech, press and assembly, and that religion should not be used as the basis of legislative classification, either to hinder or to advance religious activities.

52. Sherbert v. Verner, 374 U.S. 479 (1963). This case is of notable significance in holding that even an indirect infringement on the exercise of religion is prohibited under the Free Exercise Clause. According to Way and Burt, prior to Sherbert there was among the courts “an almost rotelike quality to the [free exercise] decisions … when the judiciary simply dismissed free exercise claims with the observation that freedom of religion is not absolute and that conduct, however religiously motivated, must conform to valid secular law,” supra note 39, at 660. The first amendment, the Court held in Cantwell v. Connecticut, 310 U.S. 296 (1940) at 303, “embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” For a discussion of this belief-action distinction and of the significance of Sherbert in this context, see Abraham, supra note 49, at 235.

53. Wisconsin v. Yoder, 406 U.S. 205 (1972).

54. Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707 (1981).

55. On the shift of the burden, in the Court's decisions, from the individual claimant to the state see Pffefer, L., God, Caesar, and the Constitution: The Court as Referee of Church-State Confrontation 34–36 (1975)Google Scholar, discussing the Court's move away from the relatively heavy burden put upon the claimant by the stress of justices such as Frankfurter on the primacy of the state's interest to the more “libertarian approach” which the majority of members have taken in recent years, in which the primary burden shifts to the state. Under the latter view, as the court put it in Yoder, 406 U.S. 205 at 215 (1972), “[o]nly those interests of the highest order and those not otherwise served can overbalance the legitimate claim to the free exercise of religion.” Pfeffer concludes his discussion by pointing out that no one can predict how long this rule will prevail. Lyng can be read as signalling a shift toward the earlier stress on the primacy of governmental interests.

56. 108 S. Ct. at 1324.

57. See supra notes 6 and 43 and accompanying text.

58. Sherbert v. Verner, 374 U.S. 398 (1963).

59. 108 S. Ct. at 1326.

60. Id. at 1326.

61. Wisconsin v. Yoder, 406 U.S. 205 (1972).

62. 108 S. Ct. at 1329, quoting Yoder at 209.

63. 108 S. Ct. at 1334, quoting Yoder at 209, emphasis added by dissent. The majority and minority also disagreed on the “centrality and indispensability” doctrine which had been fashioned out of Yoder by the Sixth Circuit in one of the early Indian sacred site cases, Sequoyah, alluded to in most subsequent such cases, and used decisively in at least two of them, including the district court decision in Lyng. Sequoyah v. T.V.A., 620 F.2d 1159, at 1164 (6th Cir. 1980), appealing to Yoder, 406 U.S. at 215 (“the religious faith and mode of life of the Amish are inseparable and interdependent”); Frank v. Alaska, 604 P.2d 1068 (Alaska 1979) (centrality of the funeral potlatch in Athabascan Indian religion); and People v. Woody, 394 P.2d 813 (1964) (peyote plays a central role in the ceremony and practice of the Native American Church). Subsequent sacred site cases in which “centrality” played a decisive role: Hopi Indian Tribe v. Block, 8 ILR 3073, at 3075 (D.D.C. June 15, 1981); Wilson v. Block, 708 F.2d 735, at 742-45 (D.C. Cir. 1983) and Northwest Indian Cemetery Protective Ass'n v. Peterson, 565 F. Supp 586, at 594-95 (N.D. Cal. 1983). See Michaelsen, , American Indian Religious Freedom Litigation: Promise and Perils, 3 J. Law & Relic 47 (1985)CrossRefGoogle Scholar and Pepper, , Conundrum of the Free Exercise Clause—Some Reflections on Recent Cases, 9 N. Ky. L. Rev. 265, 283–84 (1982)Google Scholar.

Justice Brennan expressed in dissent in Lyng his view that it is “appropriate … to require some showing of ‘centrality’ before the Government can be required either to come forward with a compelling justification for its proposed use of federal land or to forego that use altogether.” 108 S. Ct. at 1338. The majority, perceiving that this view casts the court in the role of arbiter regarding the relative importance of religious beliefs and practices to those who embrace them, asserted that “we never were intended to play” such a role. Id. at 1330.

64. The Amish, the Court pointed out, “must either abandon belief and be assimilated into society at large, or forced to migrate to some other and more tolerant region.” 406 U.S. at 218.

65. 108 S. Ct. at 1330.

66. See discussion supra, note 23 and accompanying text.

67. Bowen v. Roy, 476 U.S. 693 (1986). See notes 8 and 35 supra and accompanying text. It is of interest to note that the one dissenter in Roy, Justice White, based his dissent on adherence to the controlling, for him, cases of Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707 (1981), and Sherbert v. Vemer, 374 U.S. 398 (1963). Roy, 476 U.S. at 733. White wrote no opinion.

68. This construction is put in various ways: “Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen practices …” 476 U.S. at 699-700. Also “[T]he Free Exercise Clause is written in terms of what government cannot do to the individual, not in terms of what the individual can extract from the government” quoting Justice Douglas' concurring opinion in Sherbert, 374 U.S. at 412, and “The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures.” Roy, 476 U.S. at 700.

69. 108 S. Ct. at 1330.

70. Roy, 476 U.S. 693 at 700.

71. The first amendment begins “Congress shall make no law respecting an establishment of religion …” On the difficulties involved in Establishment Clause interpretation, see Abraham, supra note 49, at 258.

72. See supra note 25.

73. “The statutory requirement that applicants provide a Social Security number,” at issue in Roy, “is wholly neutral in religious terms and uniformly applicable.” 476 U.S. at 703. “In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude.” Id. at 707. “Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Govenment meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.” Id. Justice Rehnquist, now Chief Justice, supported Burger in the formulation of this new approach.

74. Id. at 727. The relaxation in precedent proposed by Burger in Roy was subsequently repudiated by the Court in Hobbie v. Unemployment Appeals Comm'n of Florida 480 U.S. 136 (1987). (Florida's denial of unemployment benefits held to violate the first amendment, where worker was discharged for refusing to work on her Sabbath due to religious convictions adopted after beginning employment). In this workplace case, which is similar to Sherbert, Justice Brennan wrote for the Court (103 S. Ct. 1046 at 1049): “The Appeals Commission does not seriously contend that its denial of benefits can withstand strict scrutiny; rather it urges that we hold that its justification should be determined under the less rigorous standard articulated in Chief Justice Burger's opinion in Bowen v. Roy: the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest. Five justices expressly rejected this argument in Roy. We reject it again today” (citations omitted). The justices who joined Brennan in Hobbie are Marshall, Blackmun, White, O'Connor, and Scalia.

75. 475 U. S. 503 (1986).

76. Justice O'Connor summed up her understanding of the tests involved in applying this doctrine as follows: “First, when the government attempts to deny a Free Exercise claim, it must show that an unusually important interest is at stake, whether that interest is denominated ‘compelling,’ ‘of the highest order,’ or ‘overriding.’ Second, the government must show that granting the requested exemption will do substantial harm to that interest, whether by showing that the means adopted is the ‘least restrictive’ or ‘essential,’ or that the interest will not ‘otherwise be served.’ “ Id. at 530.

77. Justice O'Connor's language in her partial dissent in Roy, 476 U.S. at 727.