The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … .” Application of the Free Exercise Clause and the Establishment Clause to Native-American religions, however, has been inconsistent.

In the early days after first European contact, and throughout much of the colonial period, Native American religions were not recognized as such, or were deemed merely “heathenish.” One difficulty arises from a lack of understanding that there never has been just one Native-American religion. At the time of first contact with Europeans, there were on the order of 300 to 1,000 Native American languages. Thus, there was also a large diversity of belief systems.

Still, broadly speaking, it can be said many Native-American religions feature a creator as well as other deities. Place, land, and nature are important, with some locations, including burial grounds, being held as sacred. Finally, the natural and supernatural are not necessarily distinguished or as distinct as in Old World religions. Instead of a particularized duality between sacred and nonsacred, in a sense, Native-American religions merely have sacred and more sacred.

Toward the end of the 19th century, the “War Policy” that had been ongoing against Native American tribes began to be accompanied by a “Peace Policy.” The goal of the Peace Policy was to eliminate Native Americans or “Indianness” through assimilation to a Eurocentric ideal. A key aspect of the process was restricting Native Americans to reservations and establishing Native-American boarding schools. It was felt that it would be easier to change or eliminate “Indianness” in the new generation if the children were separated from their parents’ influence. Despite the fact that the schools were run by the federal government, Christian education and conversion were part of the mission.

At the time, it was recognized that assimilation and Christianization faced obstacles in traditional religious and cultural practices, such as ritual dances and medicine men, or traditional spiritual leaders and healers. In 1883, Secretary of the Interior Henry M. Teller sent a letter to the Commissioner of Indian Affairs Hiram Price. In it, he described traditional Indian dances as “heathenish” and expressed concern over the role of medicine men. He claimed that they tried to keep people under their control and prevented Indian children from attending school. He also criticized the marriage customs among some Native Americans (such as polygamy), the absence of child support, and ritualized gift-giving and destruction of property.

In response, Price promulgated a set of rules that became known as the “Code of Indian Offences.” These outlawed many traditional Native-American religious practices. It established a Court of Indian Offences and outlawed “the sun-dance, the scalp-dance, and the war-dance,” and associated activities. Participation in such activities would lead to withholding of rations for 10 days. A second offence would result in withholding rations for up to 30 days, or incarceration for up to 30 days.

Medicine men were not allowed to discourage children from attending agency schools. Moreover, they could not use any “artifice or device” or the “arts of a conjuror” to encourage traditional Native-American cultural norms. Polygamous marriages were likewise outlawed, as was ritualized gift-giving and property destruction.

These policies would remain in effect until at least 1934, when new commissioner of Indian Affairs, John Collier, issued Circular No. 2970, which mandated that “[n]o interference with Indian religious life or ceremonial expression will hereafter be tolerated. The cultural liberty of Indians is in all respects to be considered equal to that of any non-Indian group.”

In 1978, Congress passed and President Jimmy Carter signed the American Indian Religious Freedom Act (AIRFA). It recognized that government policy had inhibited the practice of Native American religions, including access to sacred sites and use of sacred objects and materials.

In 1988, in Lyng v. Northwest Indian Cemetery Protective Association, the AIRFA statute came before the Supreme Court. In that case, the Forest Service wanted to build a logging road through sacred lands in the Chimney Rock area of the Six Rivers National Forest. An Environmental Impact Statement concluded that the construction of the road would destroy the religion of three Native-American tribes (which required privacy for meditation and an unobstructed views of undisturbed nature). It therefore concluded that the road should not be built.

However, the Forest Service proceeded, with a plan that included “ameliorative measures.” The Forest Service argued that the road would be remote from the mediation sites. The tribes sued, but ultimately, the Supreme Court allowed construction of the road. It concluded that the First Amendment was not violated—the Free Exercise Clause protects against government compulsion, it said, but does not mean the government must satisfy every citizen’s religious preferences on government land.

Eight years later, in Executive Order 13007, President Bill Clinton ordered that in managing federal lands, agencies must accommodate access to and use of sacred sites and further, must avoid adversely affecting such sites.

More recently, the Supreme Court addressed the issue of sacramental use of peyote by members of the Native American Church (a syncretic church with Christian and traditional native elements). In Employment Division v. Smith, the Supreme Court determined that the First Amendment Free Exercise clause did not prohibit a state from outlawing such use. In doing so, the Court stated “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

In response, Congress passed, and President Clinton signed, the Religious Freedom Restoration Act (RFRA). The RFRA provided, among other insurances, that “Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.” Some 21 states have since passed their own versions of the RFRA. In addition, the AIFRA was amended to specifically allow for use of peyote by members of the Native American Church.

Thus, although an affirmative policy of cultural eradication is no longer in effect, and progress toward broader free exercise has been made, traditional Native-American religious practices can still come into conflict with U.S. state and federal policies.