This two (2) credit seminar
course examines the unique cultural and religious freedoms
enjoyed by the American Indian peoples. Course coverage
will focus on the evolving judicial and legislative
responses to the traditional and contemporary assertions
by the American Indian peoples of their inherent right
to the free exercise of their religious and cultural
practices. Particular emphasis will be given to the
Indian peoples’ contemporary efforts to secure
federal judicial and legislative protection of such
practices.
The major U.S. Supreme Court decisions regarding these
rights, such as Lyng v. Northwest Indian Cemetery
Protective Association and Employment Division
v. Smith, will
be assessed in terms of their effect on the Indian
peoples’ religious
and cultural freedoms. Additionally, those contemporary
federal statutory and executive initiatives that seek
to preserve these freedoms, pursuant to the federal
government’s trust duty that it owes to the Indian
peoples, will be analyzed. These initiatives include
the American Indian Religious Freedom Act (AIRFA),
the Religious Freedom Restoration Act (RFRA), the Native
American Graves Protection and Repatriation Act (NAGPRA),
the National Historic Preservation Act (NHPA) and the
Archaeological Resources Protection Act (ARPA).
Several case studies will evaluate the success, if
any, achieved by the relevant federal land management
and regulatory agencies through their implementation
of these initiative pursuant to their resource management
plans and their rule making efforts. Potential alternative
legal theories that may provide new judicial or regulatory
protection for the Indian peoples' cultural and religious
resources will also be examined. Particular emphasis
will be given to the on-going international legal effort
to create a new and more encompassing indigenous cultural
resources law that will prevent the unauthorized alienation
or other loss of a people’s
sacred objects of “cultural patrimony.” |
