Unequal Land: Towards Full Recognition of Indigenous People’s Religious Rights

Abstract

Indigenous people face disparate treatment regarding religious free-exercise claims in the United States court system. Specifically, courts misconstrue native religious practices and hold native religious practitioners to a higher standard of proof than practitioners of mainstream religions in their free-exercise claims. This Article analyzes the history of oppression of indigenous people in the United States and the congressional intent to remedy such oppression through legislation. Further, this Article argues that despite Congress’s efforts to remedy the oppression of indigenous peoples, courts still utilize a problematic analysis of indigenous free-exercise claims. To resolve the inconsistent treatment between native and mainstream religious practitioners, this Article argues that courts should do three things when analyzing an indigenous free-exercise claim: (1) presume indigenous peoples suffer subjective harm from the government action at issue; (2) apply the law through an anti-subordination lens; and (3) broadly construe the Religious Freedom Restoration Act.