American Indian Cultural and Religious Freedoms

Elective Course
Course Number: LAW 595
Credits: 3

This three (3) credit seminar course examines the unique aspects of cultural and religious practices exercised 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, cultural practices both on and off reservation, language preservation issues, educational impacts on tribal culture and how outside research impacts these rights. Particular emphasis will be given to the Indian peoples’ contemporary efforts to secure federal judicial and legislative protection of cultural practices.

The major U.S. Supreme Court decisions regarding these rights 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), National Historic Preservation Act (NHPA) and the Archaeological Resources Protection Act (ARPA), Native American Languages Act (NALA) and Indian Education For All (IEFA) efforts in Montana. The course will also look at the nature, ownership and protection of Indian Cultural knowledge and resources. The impacts of non-Indian research will be evaluated along with historical impacts of federal policies on tribal cultures.

Several case studies will evaluate the success, if any, achieved by the relevant federal management and regulatory agencies through their implementation of these initiative pursuant to their management plans and their rule making efforts. Potential alternative legal theories that may provide new judicial or regulatory protection for all aspects of 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.”