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American Indian Cultural and Religious Freedoms

Elective Course

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.”