Religion, Culture, Tribes, and the Federal
Government
[Courtesy: John A. Fleming]
Religion
The Congress of the United States of America is prohibited,
by the first amendment of the Constitution, from passing any " law respecting an establishment
of religion, or prohibiting the free exercise thereof." This is far more restrictive and limiting
upon the powers of Congress then the established protection for the freedoms of speech or the
press, or the right of the people to peaceably assemble or petition the government for a redress
of grievances also found in amendment one. Our Congress has been told by the Body-politics of
the several States, through the first amendment, that it can not pass laws respecting an establishment
of religion: the term respect means to have differential regard for; esteem, to treat with propriety
or consideration, etc. In short the Congress must remain neutral regarding religion. Please note:
All laws giving special privileges to the Mormon Church, for example, were repealed by the Congress--found
in Reports H. of R. Nos. 2568, 2735, 1st Session 49th Congress (in 1887 the Mormon Act was passed--it
disestablished the Mormon Church which had earlier been tied to the new Utah Territorial Government
by Territorial action. The disestablishment was sustained-- see 136 U.S. 1, The Mormon Church
v. U.S.).
Question-- Why then and under what enumerated power did the Senate and
House of Representatives of the U.S.A. in Congress assembled declare" that henceforth it shall
be the policy of the United States to protect and preserve for American Indians their inherent
right of freedom to believe, express, and exercise the traditional religions of the American
Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use
and possession of sacred objects, and freedom to worship through ceremonials and traditional
rites?" Source-Public Law 95-341,95th Congress, approved August 11, 1978.
A partial answer to the above question is recognized when one realizes
that before that public law was passed the Congress was bombarded by enormous pressure groups
to include tribal politicians, concerned supporters, and paid lobbyist from the Indian Industry.
This is the paid staff of the tribes and other groups tied to the American Indian movement--
mostly lawyers, accountants, grant finders, and other support technical people whose salaries
or funding generally come from the U.S. Congress in support of that particular public law. Another
factor in the answer is the clear absence of concern by many congressional members of the Constitutional
limits of power placed on the Congress. This failure is tied to a number of factors to include
a member's insufficient knowledge and understanding of American civics, U.S. History and world
history as well as the member's own and private agenda and re-election problems.
Perhaps there is another element to the above question and this relates to
the several states, all fifty. Why have we not heard a word from any state legislature, much
less from the association of state Governors or Attorney Generals, when such a clear usurpation
of power from the states or the Body-politics of the several States takes place? The Body-politic
(we individual citizens, each of us possessing the sovereign power) alone has the constitution-making
power-- the U.S. Congress exist and acts for the Body-politics and when it does so as the Constitution
allows, all is well and such acts have the power of the sovereign behind it. If the Congress
acts in such a way that the Constitution does not allow then that act is ultra vires and void.
Some call acts not allowed by the Constitution, constitutional fraud. It is hard to understand
why so many state legislatures, officials, and citizens remain so quiet on matters such as these.
In this matter, public law 95-341, the Congress jurally (without Constitutional
authority) enlarged its powers because it thought it was following the Executive Branch policies,
that it was necessary and proper, and very possibly, that the measure would make the aboriginal
people involved feel better about themselves. Certainly taking this action would stop the many
pressure groups from the constant battering the government was taking concerning this matter.
When those elected officials of the Congress voted yes for this public law they violated their
oath of office.
Culture
Perhaps the most recent and blatant abuse of power by the Federal
Government, that our nation is continuing to witness, is the Federal Government support and guidance
given a Northwest tribe, the Makah Indian tribe, in their re-inventing the cultural (and they
also relate this effort to their religion) need to hunt, kill, and eat whales. The Makah Indians
alone are being allowed to violate the federal Marine Mammal Protection Act because the federal
government is protecting Indian culture.
As to the federal government giving legal recognition and or assistance
to Indian culture, that is in effect a legal recognition of special status for one class of citizens
and protecting that cultural identity in the public sphere. I can not think of another group
of our citizens so protected! All other races within our citizenship having a specific cultural
identity must preserve their cultural identity in and through the private sector. For the federal
government to protect Indian cultural identity as they are, is at least a violation of the 5th
Amendment, U.S. Constitution (due process tends to secure equality of law). It is not necessary
to present other occurrences of Federal support made to Indian tribes concerning their cultural
identity. Rather, it is most important to quote a portion of the Concurrent Resolution (100th
Congress 2nd Session, H. Con. Res. 331) pertaining to this subject (preservation of a specific
cultural identity through the public sphere): "Resolved by the House of Representatives (the
Senate concurring), that" (3) the Congress specifically acknowledges and reaffirms the trust
responsibility and obligation of the United States Government to the Indian tribes, including
Alaska Natives, for their preservation, protection, and enhancement, including the provision
of health, education, social, and economic assistance programs as necessary, and including the
duty to assist tribes in their performance of governmental responsibilities to provide for the
social and economic well-being of their members and to preserve tribal cultural identity and
heritage".
Conclusion
Where in the U.S. Constitution did the federal government have
delegated to it the power to control, support, enhance, or protect religions and or cultural
identity of a specific race or class of our citizens? It certainly can not be tied to the Commerce
Clause (Art. 1, sec 8, Clause 3, the Treaty Clause (Art. 2, Sec. 2, Clause 2), and since the
1924, Indian Citizenship Act, indeed not the War or Emergency Powers of the President or Congress,
as delegated to those authorities by the U.S. Constitution. Challenging what ever the Federal
Government claims as its power or authority to protect Indian tribal religion and cultural identity
certainly needs to take place but this challenge must include an attack on the many Unconstitutional
end results of such protective measures taken by the Federal Government.
