On June 26, 2002, the Ninth Circuit Court of Appeals in San Francisco ruled that the words "under God" in the Pledge of Allegiance are unconstitutional, because they violate the establishment clause of the First Amendment. The resulting outpouring of sanctimonious criticism and superpatriotic zeal to "put God back" into the Pledge of Allegiance is tragically ironic if one reflects on the more than two hundred years of religious oppression that the indigenous peoples and nations of the United States have endured while white America scarcely raised an objection.
Until 1935, the traditional (non-Christian) religions of the American Indians were banned outright on the reservations, and Indian people practicing their religious beliefs could be fined and sent to prison. The Sweat Lodge purification ritual and the beautiful Sun Dance religion were outlawed, and many other spiritual practices driven underground. At the same time, Christianity was forced on the Native Peoples by the missionaries. Indeed, it took a special act of Congress, the 1978 American Indian Religious Freedom Act (AIRFA), to affirm religious freedom for the Native nations. The law lacked "teeth," however; it contained no civil or criminal penalties that would serve to implement it.1 Furthermore, AIRFA did not fully address the deeper spiritual aspects of traditional belief and practice, especially concerning sacred objects and human remains, sacred sites, and indigenous intellectual-property rights. Subsequently, through lobbying and political pressure by Native people and their allies, important new legislation was [End Page 7] enacted, the National Museum of the American Indian Act of 1989 and the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990. Yet, ten years after their passage, only 10 percent of an estimated 200,000 Indian sacred remains have even been inventoried, let alone repatriated to their respective tribal entities. One critic noted, "there are loopholes in NAGPRA so large, and the lack of enforcement so dire, that you can drive an entire collection through it."2 In 1996, the Religious Freedom Act was expanded by President William Clinton's Executive Order 13007 to include some protection of sacred sites. However, the executive order applies only to federal lands and simply directs federal managers "to avoid adversely affecting the physical integrity of such sacred sites."
The protective legislation so far advanced is limited mainly to "religious beliefs," while failing to safeguard the practice of Native American religious cultures. Since many Native people find it difficult to relate to the word religion to explain their beliefs, traditions, and spiritual practices, a Navajo Community College text published in 1977 recommended using the concept of "the Sacred."3 The Sacred, or spirituality, lies at the heart of Indian culture and is not separate from the indigenous institutions of government, the family, or even the economy. The Sacred is not only something made or declared holy; it is also something shared, a collective experience necessary in order to keep the oral traditions and sacred ways vital. In Recovering the Sacred, Winona LaDuke points out that the Sacred includes aspects of Native spiritual culture as diverse as certain mountains and waters, indigenous DNA, Anishinaabeg rice, and Nez Perce horses. It is "the relationship of peoples to their sacred lands, to relatives with fins or hooves, to the plant and animal foods that anchor a way of life"4
The struggle continues to ensure not only the enforcement of the existing protective legislation but also to broaden the scope of religious protection in order to allow the practice of Native American spiritual culture.
The year 2003 marked the twenty-fifth anniversary of the passage of the American Indian Religious Freedom Act. It is therefore fitting to reexamine the history of U.S. religious intolerance toward Native peoples in terms of the limitations of current legislation and government policy. In this task, however, we must endeavor to discern the underlying cause (or causes) of religious oppression of Native people rather than continue to react to the palliatives and half measures represented by the aforementioned legal remedies. One theoretical formulation that may explain the inability of the federal government to fundamentally deal with the religious...