American Indian Religious Freedom in Theory and Practice
The late Seneca scholar and philosopher John Mohawk said: "In order to be free, you must act free." Mohawk was a contemporary of mine, and he knew the struggle for freedom for indigenous peoples is not theoretical, it is real; it is also difficult, constant and requires remembering where we, as American Indians, come from.
I was reminded of John two weeks ago when a number of people and I put up and participated in the Lakota’s most sacred ceremony, the Sun Dance in the sacred Black Hills in occupied Lakota territory. For thirty-three years, we have put up our ceremony where it is supposed to be held, in the He Sapa. This year was different though, and that’s why I thought of John.
This year, the National Park Service tried to impose unacceptable restrictions on how we were going to gather, meet, and support the ceremony where we hold it, in what the invaders now call Wind Cave National Park. When we arrived at the site, we were met by over a dozen armed federal rangers, including what appeared to be SWAT team members. They had roped off the area with yellow rope and bright orange snow fence. It immediately felt like we were being imprisoned for our ceremony, but we did not put up with these arbitrary restrictions. We were required to respond to the U.S. officials as if we were free, and we did. We successfully put up our camp and held our five-day ceremony.
Most Indian people who are under fifty years of age cannot recall a time when our indigenous sacred ceremonies were illegal, but I can. Let me repeat, our ceremonies were illegal—people went to jail for dancing the Sun Dance, for constructing and using the purification lodge, for practicing the Peyote Way, and for many other of our traditional ways.
I personally remember when the government would send a doctor to supervise the piercing of the flesh; if the ceremony did not meet with their approval, they would cancel the ceremony! It was because of these racist restrictions on our spirituality that the American Indian Movement and others actively challenged the U.S. policies—resulting in the passage of the American Indian Religious Freedom Act (AIRFA). We knew, however, that AIRFA meant nothing if we did not exercise our rights, and if we did not force U.S. officials to respect our natural rights to spiritual freedom.
Unfortunately, the passage of AIRFA was a hollow victory. Of the first twelve cases brought by Indians, we lost all twelve cases. The U.S. Supreme Court said AIRFA was primarily a policy statement, with no provision for legal enforcement in the courts. AIRFA was amended in 1994, with stronger requirements for U.S. officials to respect indigenous ceremonies on what the U.S. says are federal lands, with a right for Indians to sue in federal courts for violation of our access and use of sacred sites. Specifically, the amendments state that "no Federal lands … may be managed in a manner that undermines and frustrates a traditional Native American religion or religious practices."
Two weeks ago, we had to remind the National Park Service (NPS) that we have been engaging in our ceremonies long before there was a NPS. When the NPS said that we were subject to the restrictions of the Archeological Resources Protection Act, we reminded them that we, and our ceremonies, are part of the living archeology of the region.
At one point, while the ceremony was in progress, the rangers entered the camp and began to give orders about how the camp was to be organized. I challenged them to arrest us. We were willing and able to assert our natural rights, our treaty rights, and our statutory rights before a federal judge. The rangers withdrew and did not bother us for the remainder of the ceremony. In order to be free, we must act free—and we must be willing to risk the costs of doing so.
At the same time that we were asserting our rights at Wind Cave, a gang of thugs, known as the U.S. Supreme Court, was handing down its recent decision in U.S. v. Jicarilla Apache Nation. The main part of the opinion was bad enough, saying that the U.S. could engage in conflict of interest in administering Indian trust assets, and the U.S. does not have to disclose its bad acts.
The more revealing part of the opinion, and a position that is directly related to how the National Park Service was treating us at Wind Cave, was that "The trust obligations of the United States to the Indian tribes are established and governed by statute rather than the common law, and in fulfilling its statutory duties, the [United States]Government acts not as a private trustee but pursuant to its sovereign interest in the execution of federal law."
Every Indian person should understand the meaning of this last sentence. Some Indian tribal government officials and Indian law attorneys relate to U.S. government officials and courts as though the "trust relationship" will serve as a kind of shield against injustice. This is pure delusion.
The Supreme Court has now made it crystal clear that the so-called trust relationship is a sham, and that the highest and primary interest of the U.S. is to protect its own sovereign interests, and not those of indigenous peoples. It has also made clear that the fabrication of federal Indian law by the U.S. Congress and the U.S. courts is the tool and the vehicle to protect those U.S. interests. The only remedy for this latest expression of anti-Indian racism is for all Indian people to "act free, in order to be free.
Russell Means, Oglala/Iynktowan, is Chief Facilitator, Republic of Lakotah (republicoflakotah.com), and author of the autobiography Where White Men Fear to Tread.