Fools Crow Versus Gullett: A Critical Analysis of the American Indian Religious Freedom Act

Abstract

Historically, American Indian religions have been repressed in the United States out of the conviction that traditional indigenous beliefs would hinder the Indian's “progress toward civilization.” While the First Amendment protects the freedom of religion, it has not done so for American Indian religions. In 1978, Congress passed the American Indian Religious Freedom Act (AIRFA), which was designed to protect and preserve for American Indians their inherent right to believe, express and exercise their traditional religions. This paper will analyze the effectiveness of AIRFA through an examination of one court case, Fools Crow v. Gullett, which involved a Cheyenne and Lakota sacred place, Bear Butte. It will conclude that AIRFA cannot prevent the desecration of a sacred place. It will also extend some arguments of legal scholar Ellen Sewell to the Fools Crow case, arguing that the courts misunderstand the unique nature of American Indian religions and disregard the trust relationship between American Indians and the federal government. It will conclude with further observations about liberalism, justice and property rights in the judicial system.