New Echota: My painful judgment in the courts of a foreign country

I had never visited New Echota (former capital of the Cherokee Nation) until this past Saturday, which is ridiculous considering that it’s a mile from my sister’s and uncle’s houses (the family compound) where I visit at least once a month.

Let’s face it: With my relentless enthusiasm and hyper-curious nature, I could visit the World’s Largest Ketchup Bottle or the Corn Museum and come out raving about the historical treasures within. Still, it was pretty amazing how much I got for my $6.50 admission price.

A nation’s capital

The Cherokee Nation’s legislature established the capital city of New Echota in 1825 near present-day Calhoun, Ga., where the Conasauga and Coosawattee rivers meet to form the Oostanaula River. The citizens developed a written language, published a newspaper, managed thriving farms and businesses where they peaceably traded with English settlers, seated a bicameral legislature, and had a court system in which lower court decisions were appealed to the Supreme Court. (It should be noted, though—before we over-romanticize the Cherokee—that they didn’t believe in jails and simply fined, whipped, or hanged their guilty parties.)

All of this peace and prosperity came to a screeching halt when you-know-who got greedy and spoiled it all after the discovery of gold on Cherokee lands. Congress passed the Indian Removal Act in 1832, and the Georgia Guard began evicting Cherokee families from their homes. In 1835, Cherokee leaders—seeing no other alternative—signed the Treaty of New Echota, which swapped Cherokee lands east of the Mississippi for lands in present-day Oklahoma. In 1838, the U.S. Army began rounding up the remaining Cherokee into stockades, where they began their forced thousand-mile march west—now known as the Trail of Tears. Thousands died of disease, exposure, and abuse and murder at the hands of white settlers.

While I knew much of this history, I think it’s important to hear it again and again—as painful as it is (especially for this descendant of white settlers who was raised on not one but two land lots originally stolen from the Cherokee in a county originally stolen from the Cherokee).

After I was bashed on the head with this information in the form of a well-made 17-minute film, I was turned loose onto the grounds, which feature 12 original and reconstructed buildings and remnants of the town streets, farms, and ball fields.

I was particularly impressed with the town council house and the Supreme Court building, which are reproductions and therefore are open to the public. One can even climb up behind the bar and sit on the bench. I declined, because once you’re a member of any bar, you understand what that means. Plus, based on the shameful information I had just heard, I felt that it would have been grossly inappropriate for me to have done that.

A sovereign nation

As fascinated as I was by the Cherokee justice system, my curiosity was piqued by a case that was not heard in the Cherokee courts but in the U.S. Supreme Court: the case of Worcester v. Georgia, 31 U.S. 515 (1832).

New Echota postmaster and white missionary Samuel Worcester was cited under a new Georgia law (intended to pressure the Cherokee to vacate) that forbade white people to live in Indian territory without a state permit. Worcester and others refused and were sentenced to four years’ hard labor. Worcester appealed to the U.S. Supreme Court and won. 31 U.S. 515, 520.

The case is notable not for the holding (Worcester’s conviction was struck down) but for the dicta. Chief Justice John Marshall, writing the opinion, seemed frankly pro-Indian. He recognized the Cherokee as a sovereign nation, a “distinct community” over which the State of Georgia could have no authority. 31 U.S. 515, 520. In other words, under Article I of the U.S. Constitution, the Cherokee Nation was similarly situated to the United States, and could therefore only be dealt with by the federal government. Id. at 573, citing U.S. Const. art. I. States therefore had no jurisdiction over Indian lands.

So what?

Despite the noble pronouncements in Chief Justice Marshall’s opinion, the federal government (under President Andrew Jackson) dealt with the Cherokee and other Southeastern tribes as atrociously as the states did. Still, the opinion set a precedent for the complicated relationship between sovereign Indian nations and the federal government that persists today.

Today, the three federally-recognized Cherokee tribes have more than 316,000 enrolled members, while the 2000 U.S. Census showed 875,276 people self-reporting as Cherokee. Two tribes are headquartered in Oklahoma, while the Eastern band (whose forebears escaped the Trail of Tears) remains in western North Carolina. While that’s a large population, it’s fair to say that social problems persist on Indian reservations, and the two large Oklahoma tribes have an uneasy relationship.

I wish there were an uplifting end to this post, but even that statement seems hollow and insulting. The best we can do is visit places such as New Echota and consider whether we’re participating in similar injustices today. Our shared history appears to be the harshest judge of all.

And yet it moves: Freedom of religion goes to school

On Wednesday, May 1, 2013, a controversial religious meeting was held at my high school, Lumpkin County High School (LCHS) in Dahlonega, Georgia, a public school that is part of the county school system. Despite a fair amount of news media coverage, we’re still running dangerously low on facts here, but this is what we know so far: At about 7:30 a.m., a student went to a coach’s office and said that he wanted the coach to pray with him. The coach did so, and other students came to pray as well. The meeting lasted until about 1:30 p.m. and involved about 50 students—10 to 15 of whom were saved—converted to the Christian faith—during the event. In addition to the coach, at least three other teachers participated. The teachers left their classes to participate: two left assistants in charge, while one teacher left his or her class unattended.

No students or teachers were disciplined. (One student received in-school suspension for being “overly aggressive” to a teacher during the incident.) According to the news reports, the ACLU is investigating.

While there is plenty to say here, I want to try to stick to the constitutional issues—which of course involve the First Amendment.

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” U.S. Const. amend I

You can see we’ve got two separate pronouncements here regarding religion: the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) and the Free Exercise Clause (“or prohibiting the free exercise thereof”).

Normally, a court case regarding a religious issue will focus on one of these clauses, but we have a unique situation at my high school. LCHS is triggering both clauses. Go Indians!

The students and teachers who participated in the event are arguing that, had they not been allowed to pray and worship, their First Amendment rights under the Free Exercise clause would have been violated. The students who were left without teachers in their classes, the rest of the student body, the community, and the world at large, really, can argue that LCHS violated the Establishment Clause by allowing a religious service during school hours using school facilities and led in part by school faculty.

You can see the conflict inherent in these clauses. If I’m an agent of the government (a school teacher, prison warden, mayor, etc.), when does my right to practice my religion become an unconstitutional establishment of an official state religion?

Freedom of Religion? The Free Exercise Clause

“Congress shall make no law… prohibiting the free exercise thereof….” U.S. Const. amend I

It’s pretty clear that the students and teachers who led the prayer assembly would not have a case if they chose to sue. They can’t show harm—they were allowed to practice their religion, and no one was disciplined or suspended. They can’t make the argument, therefore, that their rights were infringed.

Superintendent Moye has said, though, that he can’t let this happen again. He told the coach that, if he wants to pray with students, it must occur before or after school and cannot disrupt the school day.

Let’s make it interesting, then, and “fiddle with the facts,” as my contracts professor used to say.

Let’s say the same student approaches the coach before school next Wednesday and again asks him to pray. The coach agrees, and the same three teachers and 50+ students join them in the gym. As the bell rings to signal the start of first period, the principal comes to the gym and orders the students and teachers to go to class. They refuse, and the students and teachers are disciplined.

The school principal is employed by the government and is acting in his official capacity. The students and teachers are praying and spreading the gospel to the unconverted—central acts of the faith of evangelical Christians. The government agent (the principal), therefore, has prevented them from practicing their religion. He points to the school handbook, approved by the state board of education, which requires students and teachers to be in class unless they have permission to do otherwise from the principal.

Has the school principal violated the First Amendment rights of the students and teachers?

Discomfort zone

As a free people, we’re offended by the general idea of government interference with our religious practices. It’s harder to draw a line, however, when we’re talking about specific practices. We’re charmed when we must alter our driving habits to accommodate an Amish buggy—but not when we’re asked to provide special meals to a serial killer on death row.

It’s no surprise, then, that the nation’s jurisprudence has shifted so much where free exercise is concerned. I think it’s fair to say that we started out with a narrow reading of the Free Exercise Clause. The Supreme Court upheld the polygamy conviction of George Reynolds, holding that the Morrill Anti-Bigamy Act did not violate his constitutional rights—because the First Amendment protected his beliefs but not his actions. Reynolds v. U.S., 98 U.S. 145 (1878).

Eventually, the pendulum swung to a much more liberal treatment, requiring a law that interfered with a religious practice to survive a “strict scrutiny” analysis. In other words, the law or rule had to satisfy three tests: 1) The government actor must have a compelling interest, 2) The policy must be narrowly tailored to achieve the interest, and 3) The policy must be the least restrictive means to achieve the interest. See Sherbert v. Verner, 374 U.S. 398 (1963).

Now, though, we’ve moved back to a narrow interpretation—and we no longer require strict scrutiny. The key question here seems to be one of government intent.

If the government passed a law specifically aimed at stopping a religious group from practicing its religion, then that would be unconstitutional. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), in which the city of Hialeah, Florida, passed an ordinance banning animal sacrifice because the city leaders wanted to discourage a Santeria church from moving there.

On the other hand, if the law is neutrally written but has the unintended “side effect” of restricting religious practice, the law will likely be found constitutional so long as the law applies to everyone equally. See Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990).

In our LCHS case, the school system policies (and the county, state, and federal rules behind it) are not aimed at prohibiting the students from practicing their religion. They are neutrally written (they don’t mention a group of students or a religious group), and they are no more likely to be applied to Evangelical Christian students as they are to any other students.

From a Free Exercise perspective, then, the school system is safe.

Freedom from Religion? The Establishment Clause

“Congress shall make no law respecting an establishment of religion...” U.S. Const. amend I

There is quite a bit of case law on school prayer and school-related religious activities. It is pretty clear that the teachers (and therefore the school system) are violating the Establishment Clause.

A government action violates the Establishment Clause unless it passes all three prongs of the Lemon test. For the government action to be proper, 1) it must have a secular purpose, 2) it must not advance religion, and 3) it must not foster an excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602 (1971).

One popular Facebook meme reads: The Constitution guarantees freedom OF religion, not freedom FROM religion. The Court has held consistently otherwise: The government cannot promote one particular religion, and it is also cannot promote religion over the lack of religion. See Everson v. Board of Education of Ewing, 330 U.S. 1 (1947). The Court reiterated this in Wallace v. Jaffree, holding that one of the primary aims of the First Amendment is to allow us to practice whichever religion we choose—or no religion at all. 472 U.S. 38 at 53 (1985).

The holding in Santa Fe Independent School Dist. V. Doe suggests that a prayer session on school grounds facilitated by school employees is unconstitutional—even if it is led by students. 530 U.S. 290 (2000). Further, the school activity cannot endorse religion. See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

Religious activity during school hours is unconstitutional even when the activity is voluntary and students can leave. See School Dist. Of Abington Township v. Schempp, 374 U.S. 203 (1963).

What’s the answer?

I could continue to cite case after case, but it’s pretty clear: While a student has the right to practice his or her religion as long as it doesn’t disrupt school, a public school cannot endorse religion.

At LCHS, we had at least four teachers (state employees and figures of authority at the school) facilitating a prayer session on public school grounds instead of performing their taxpayer-funded duties. The group converted several students to Christianity, and left the other students without teachers and without instruction for part of this time. School policies were ignored (no one was punished, and the meeting was allowed to continue for about six hours) in support of this activity. All of this was funded by the taxpayers at a public school.

Several people have argued that the prayer session was voluntary, but the case law tells us that this doesn’t make it constitutional. The activity itself constitutes an improper endorsement of religion—especially when it’s held on school grounds during school hours—and even when teachers aren’t conducting the prayer.

Also, it’s troubling that the teachers were in effect being paid to participate in the prayer rather than teach their classes. This seems like a clear case of state-sponsorship (literally!) of religious activity. Likewise, it’s hard to imagine any other spontaneous student walk-out going unpunished, which further supports the appearance of government endorsement.

Where does this leave us?

The ACLU is said to be investigating the matter. Frankly, I don’t know what this means exactly. Are they deciding whether a lawsuit is called for? Maybe. Hopefully, the school system is preparing itself for this, because I don’t think they have a very strong defense at all.

Several commenters have said that it doesn’t matter what the law says. When God tells you to do something, you do it. Maybe so, but in this case, you can’t make the argument that it’s constitutional.

During this controversy, I’ve often thought of the phrase that Galileo is said to have uttered after the Church forced him to recant his assertion that the earth revolved around the sun. “Eppur si muove (and yet it moves).”