NO.9.. Religion, Culture, Tribes, and the Federal Government 
[Courtesy: John A. Fleming] 
February 5, 2000 (all rights reserved) 

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repealed by the Congress-- found in Reports H. of R. Nos. 2568, 2735, 1st Sess. 
49th Cong. (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 members 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 mostimportant 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. JAF