While it is common for majoritarian politics to reflect dominant cultural values, there is a myth that the courts should stand above the political fray. The idea of a constitutional or limited democracy, which is the form of government in the United States, promotes majority rule but also protects certain minority rights, or sets aside some matters on which even the majority may not rule. In the United States the courts, through the process known as judicial review, have assumed this role of protecting minority rights from majority institutions like plebiscites and popularly elected legislatures and executives. But even courts, as well as the so-called political instruments of government, are creatures of their culture. Although they may subscribe to the idea that religions need not be orthodox in order to be protected, they too may fail to protect the exercise of religions that are unfamiliar or out of the mainstream. If freedom is defined merely as the absence of physical restraint, then the native people were free to enter the high country and there was no infringement on religious liberty.

Members of the religious community were not prohibited from going through the motions of meditation, making medicine, or performing ceremonies. In that sense the Forest Service did not infringe upon their free exercise of religion. That was the legal interpretation based upon traditional Anglo-American jurisprudence of the dominant culture.

But in a spiritual sense the Supreme Court decision failed to extend the First Amendment protection to American Indian Religion. Unless the high country remained sacred, where leaders and members of the community could find privacy, silence, and undisturbed natural conditions the religious acts were meaningless. Thus, contrary to the First Amendment in a meaningful sense, a majority of the American people acting through the Forest Service was prepared to infringe upon the right of a minority native people freely to exercise its ancient religion.

Bibliographies: Karuk, Tolowa, Yurok.
Photographs from Edward S. Curtis, The North American Indian.

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