Limiting Principles and Empowering Practices in American Indian Religious Freedoms

Kristen A. Carpenter

University of Colorado Law School

March 2, 2012

Connecticut Law Review, Vol. 45, No. 2, 2012

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court's Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations. Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts-namely Congress's decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level-that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.

Number of Pages in PDF File: 95

Keywords: religion, First Amendment, RFRA, legislation, administrative law, American Indian, Native American, tribe, sacred site, peyote, eagle feather, burial site, Native American Church, NAGPRA, AIRFA, BEGPA, NHPA

Open PDF in Browser Download This Paper

Date posted: March 4, 2012 ; Last revised: March 17, 2013

Suggested Citation

Carpenter, Kristen A., Limiting Principles and Empowering Practices in American Indian Religious Freedoms (March 2, 2012). Connecticut Law Review, Vol. 45, No. 2, 2012. Available at SSRN: http://ssrn.com/abstract=2015771 or http://dx.doi.org/10.2139/ssrn.2015771

Contact Information

Kristen A. Carpenter (Contact Author)
University of Colorado Law School ( email )
Wolf Law Building, 401 UCB
Boulder, CO 80309
United States
(303) 492-6526 (Phone)
HOME PAGE: http://lawweb.colorado.edu/profiles/profile.jsp?id=368
Feedback to SSRN

Paper statistics
Abstract Views: 1,758
Downloads: 58
Download Rank: 255,793

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.203 seconds