Amicus Curiae Brief — Oklahoma Statewide Charter School Board, et al., Petitioners v. Gentner Drummond, Attorney General of Oklahoma, ex rel. Oklahoma

Nos. 24-394 & 24-396

In the

Supreme Court of the United States

OKLAHOMA STATEWIDE CHARTER

SCHOOL BOARD, et al.,

Petitioners,

v.

GENTNER DRUMMOND, ATTORNEY GENERAL

OF OKLAHOMA, ex rel., OKLAHOMA,

Respondent.

[Additional Caption on Inside Cover]

On Writs of Certiorari to the

Supreme Court of Oklahoma

BRIEF OF AMICI CURIAE THE ASSOCIATION ON

AMERICAN INDIAN AFFAIRS, THE NATIONAL

NATIVE AMERICAN BOARDING SCHOOL

HEALING COALITION, AND THE NATIONAL

CONGRESS OF AMERICAN INDIANS

IN SUPPORT OF RESPONDENT

John E. Echohawk

Counsel of Record

Melody L. McCoy

Beth Margaret Wright

Native A merican

Rights Fund

250 Arapahoe Avenue

Boulder, CO 80302

(303) 447-8760

jechohwk@narf.org

Morgan E. Saunders

Native A merican

Rights Fund

950 F Street, NW,

Suite 1050

Washington, DC 20004

Counsel for Amici Curiae

379772

A

(800) 274-3321 • (800) 359-6859

ST. ISIDORE OF SEVILLE CATHOLIC

VIRTUAL SCHOOL,

Petitioner,

v.

GENTNER DRUMMOND, ATTORNEY GENERAL

OF OKLAHOMA, ex rel., OKLAHOMA,

Respondent.

i

QUESTIONS PRESENTED

1. Whether the academic and pedagogical choices of

a privately owned and run school constitute state action

simply because it contracts with the state to offer a free

educational option for interested students.

2. Whether a state violates the Free Exercise Clause

by excluding privately run religious schools from the

state’s charter-school program solely because the schools

are religious, or whether a state can justify such an

exclusion by invoking antiestablishment interests that go

further than the Establishment Clause requires.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I.

This Court’s Precedents Upholding Tribal

Expenditures Of Tr ibal Monies For

Religious Education Are Inapposite To The

Present Cases Involving State Expenditures

Of Public Monies For Religious Education . . . . 11

II. Examples Of Federal Indian Boarding

Schools Are Paradigmatic Establishment

And Free Exercise Clause Violations And

Should Not Be Misused To Inform This

Court’s Decision-Making In These Cases . . . . . 15

III. T he Unit ed Stat es’ Suppression Of

Native Religions, An Integral Part Of

Histor ical Federal Policy, Likew ise

Should Not Be Misused To Inform The

Court’s Decision-Making In These Cases . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

iii

TABLE OF CITED AUTHORITIES

Page

Cases:

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Denezpi v. United States,

596 U.S. 591 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 14

Felix v. Patrick,

145 U.S. 317 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Haaland v. Brackeen,

599 U.S. 255 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 23

In re Kansas Indians,

72 U.S. 737 (1866) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16

Lincoln v. Vigil,

508 U.S. 182 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14

Merrion v. Jicarilla Apache Tribe,

455 U.S. 130 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Quick Bear v. Leupp,

210 U.S. 50 (1908) . . . . . . . . . . . . . . . . 4, 5, 6, 12, 13, 14

iv

Cited Authorities

Page

Sac and Fox Tribe of Indians of Okla. v.

Apex Const. Co.,

757 F.2d 221 (10th Cir. 1985), cert denied,

474 U.S. 850 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11

Scholder v. United States,

428 F.2d 1123 (9th Cir. 1970),

cert denied, 400 U.S. 942 (1970) . . . . . . . . . . . . . . . . 13

Talton v. Mayes,

163 U.S. 376 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12

Constitutions, treaties, and statutes:

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Treaty Between the United States of A m.

& D i f fer ent T r ib e s of Siou x I nd i a n s ,

Feb. 24, 1869, 15 Stat. 635 . . . . . . . . . . . . . . . . . . . . . . 5

Treaty Between the United States of America

a nd t he K a sk a sk i a T r ib e of I nd i a n s ,

Aug. 13, 1803, 7 Stat. 78 . . . . . . . . . . . . . . . . . . . . . . . 14

Act of April 10, 1869, 16 Stat. 40 (1869) . . . . . . . . . . . 7, 18

Act of June 7, 1897, 30 Stat. 62 (1897) . . . . . . . . . . . . 8, 13

Act of March 1, 1899, 30 Stat. 924 (1899) . . . . . . . . . . . . 21

v

Cited Authorities

Page

American Indian Religious Freedom Act of 1978,

Pub. L. 95–341, 92 Stat. 469, 42 U.S.C. § 1996 . . 3, 27

Indian Civil Rights Act of 1968, Pub. L. 90284, Title II, § 201, 82 Stat. 77, 25 U.S.C.

§§ 1301-1303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12

Indian Reorganization Act of 1934, Pub. L. 73-383,

48 Stat. 984, 25 U.S.C. § 5101, et seq. . . . . . . . . . . 9, 24

Indian Self-Deter mination and Education

Assistance Act of 1975, Pub. L. 93–638, 88 Stat.

2203, 25 U.S.C. §§ 5301-5423 . . . . . . . . . . . . . . . . . . . 24

Legislative Branch Materials:

S. Rep. No. 91-501, 91st Cong., 1st Sess. (1969) . . . . . . 24

S. Rep. No. 103-411, 103rd Cong., 2d Sess. (1994) . . . . . 6

H.R. Rep. No. 100-744, pt. 1, 100th Cong., 2d Sess.

(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 24

Indian Child Welfare Act of 1977: Hearing Before

the S. Select Comm. on Indian Affs., 95th Cong.

(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

vi

Cited Authorities

Page

Executive Branch and Agency Materials:

A nn. Rep. of the Comm’r of Indian A ff.,

29th Cong., 2nd Sess. (1846) . . . . . . . . . . . . . . . . . . . 17

A nn. Rep. of the Comm’r of Indian A ff.,

42nd Cong., 3rd Sess. (1872) . . . . . . . . . . . . . . . . . . . 18

A nn. Rep. of the Comm’r of Indian A ff.,

49th Cong., 2nd Sess. (1886) . . . . . . . . . . . . . . . . . . . 17

A nn. Rep. of the Comm’r of Indian A ff.,

51st Cong., 1st Sess. (1889) . . . . . . . . . . . . . . . . . . 21, 26

A nn. Rep. of the Comm’r of Indian A ff.,

51st Cong., 2nd Sess. (1890) . . . . . . . . . . . . . . . . . . . . 22

Superin. of Indian Educ. Ann. Rep. (1887) . . . . . . . . . . 22

Dep’t of t he Int er ior, O f f. Ind i a n A f fs.,

Circular No. 2970, Jan. 3, 1934 . . . . . . . . . . . . . . . . . 23

Letter from Hiram Price, Commissioner of

Indian Affairs, to Henry M. Teller, Secretary

of the Interior, Mar. 30, 1883 . . . . . . . . . . . . . . . . . . . 26

Letter from Daniel M. Browning, Commissioner of

Indian Affairs, to W.H. Clapp, Sept. 30, 1896 . . . . . 22

Federa l A gencies Task Force, Repo r t to

Congress on American Indian Religious

Freedom Act of 1978 (Aug. 1979) . . . . . . . . . . . . . . 6, 25

vii

Cited Authorities

Page

Treatises, Books, Law Review Articles,

Media Articles and other Publications

David Wallace Adams, Education for Extinction:

American Indians and the Boarding School

Experience, 1875-1928 (1995) . . . . . . . . . . . . . . . . . . . 21

R. Pierce Beaver, Church , State, and the

American Indians: Two and a Half Centuries

of Partnership in Missions Between Protestant

Churches and Government (1966) . . . . . . . . . . . . . . 16

Felix S. Cohen, Cohen’s Handbook of Federal

Indian Law § 2.09[1] (Nell Jessup Newton ed.,

2024 ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18, 23

Allison M. Dussias, Ghost Dance and Holy

Ghost: The Echoes of Nineteenth Century

Christianization Policy in Twentieth-Century

Native Amer ican Free Exercise Cases,

49 Stan. L. Rev. 773 (1997) . . . . . . . . . . . . . . . . . . 18, 26

Dana Hedg peth, et al ., More Than 3,100

Students Died At Schools Built to Crush

Native American Cultures, The Wash. Post

(Dec. 22, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21

Robert H. Keller, American Protestantism

and the United States Indian Policy 1869-82

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 19

viii

Cited Authorities

Page

Hugh Matternes, et al., Archival Research of the

Carlisle Indian School Cemetery (2017) . . . . . . . . . 21

Lewis Meriam, et al., The Problem of Indian

Administration, Inst. For Gov’t Rsch. (1928) . . 8, 9, 23

Offering an Apology to Native A mericans,

Alaska Natives, and Native Hawaiians—

From the Presbytery of Baltimore (2016) . . . . . . . . . 4

Francis Paul Prucha, American Indian Policy in

Crisis: Christian Reformers and the Indian,

1865-1900 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Francis Paul Prucha, Churches and the Indian

Schools 1888-1912 (1979) . . . . . . . . . . . . . . . . . . 8, 21, 22

Francis Pau l P r ucha , The G reat Father:

The United States Government and the

American Indians (1995) . . . . . . . . . . . 7, 15-19, 21, 23

T h e Na tiv e Am e r i c a n Bo a r din g Sch o ol

System, N.Y. Times, https://www.nytimes.

c om / i nt e r a c t i ve / 2 0 2 3 / 0 8 / 3 0 / u s / n at i ve american-boardingschools.html (last visited

Apr. 4, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. Conf. of Catholic Bishops, Keeping Christ’s

Sacred Promise: A Pastoral Framework for

Indigenous Ministry (2024) . . . . . . . . . . . . . . . . . . . . . 4

ix

Cited Authorities

Page

Louis S. Warren, God’s Red Son: The Ghost

Dance Religion and the Making of Modern

America (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Tisa Joy Wenger, We Have a Religion: The

1920s Pueblo Indian Dance Controversy

and American Religious Freedom (2009) . . . . . . . . 26

1

INTEREST OF AMICI CURIAE1

Amicus Curiae, the Association on American Indian

Affairs (Association), https://www.indian-affairs.org/,

is the longest-serving national Native non-profit in the

United States, operating since 1922. Since its founding,

the Association has worked to protect tribal sovereignty

and address the impact of federal Indian boarding schools

on Native Nations, as well as to provide expertise and

training on issues of federal Indian law. Amicus Curiae,

the National Native American Boarding School Healing

Coalition (NABS), https://boardingschoolhealing.org/, is

an organization dedicated to addressing the historical

trauma caused by the United States government’s policy

of forcibly removing Native American children from their

families and communities to attend boarding schools.

NABS works to raise awareness of this painful past by

documenting the history and legacy of these schools,

promoting legislative action to address the harm done

by the schools, and advocating for truth-telling, healing

and justice for Native communities impacted by the

school system. Amicus Curiae, the National Congress of

American Indians (NCAI), https://www.ncai.org/, is the

oldest and largest national membership organization of

American Indian and Alaska Native Nations and their

citizens. Since 1944, NCAI has advised and educated

tribal, state, and federal governments on issues of tribal

sovereignty and federal Indian law and policy affecting

Native Nations.

1. Pursuant to Rule 37.6, counsel for Amici Curiae certify

that no part of this brief was authored by counsel for any party,

and no such counsel or party made a monetary contribution to the

preparation or submission of the brief.

2

Amici firmly support Native Nations as distinct,

separate sovereigns deciding for themselves how

to educate their children and whether to direct the

United States to use tribal monies for Indian education.

Amici decry the harmful legacy of past federal policies

which included forcibly converting Indian children to

Christianity in federal Indian boarding schools and

penalizing and criminalizing Native religions.

Amici are very concerned that these two important

aspects of federal Indian law and federal policy might

be misunderstood in these cases. Amici have a strong

interest in ensuring that these matters are accurately

depicted and not misused to support a constitutional rule

that effectively would justify or celebrate the United

States government’s heinous treatment of Natives

and Native religions. Accordingly, without taking a

position on the merits of other issues raised in these

cases, Amici submit this brief to remind the Court of its

precedents appropriately upholding tribal expenditures

of tribal monies for Indian education in religious schools

and distinguishing those expenditures from federal

expenditures of public monies for religious education for

Indians. Amici also caution that the federal expenditures

of public monies for religious education for Indians, cited

by Petitioners and their Amici, must be understood in

the context of the devastating historical federal Indian

“civilization” policy. 2

2. The term “civilization” is a misnomer for what since has

been recognized more appropriately as “cultural genocide.” See

Indian Child Welfare Act of 1977: Hearing Before the S. Select

Comm. on Indian Affs., 95th Cong 2 (1977) (statement of Sen.

James Abourezk, D-SD).

3

SUMMARY OF ARGUMENT

In asking this Court for a constitutional rule that

allows the State of Oklahoma to fund religious charter

schools, Petitioners and their Amici argue that the United

States has a tradition of funding denominational education

without offending the Establishment Clause, U.S. Const.

Amend. I. E.g., Brief for Petitioner Oklahoma Statewide

Charter Sch. Bd. at 4; Brief for Petitioner St. Isidore of Seville

Catholic Virtual Sch. at 42; Brief Amici Curiae of Christian

Legal Soc’y, et al. at 8-9. Petitioners rely on specific historical

examples of the United States, e.g., paying “churches to run

schools for American Indians,” making treaties to provide

“financial support for ‘a priest of [the Catholic] religion’ to

. . . educate the tribes children,” and passing statutes “that

paid religious groups to teach Native Americans ‘literacy

and agriculture.’” Brief for Petitioner Oklahoma Statewide

Charter Sch. Bd. at 5 (citations omitted).

These historical examples need clarification on two

points. First, at least for U.S. Constitutional purposes, this

Court distinguishes expenditures by the United States

of tribal monies for Indian education in religious schools

as directed by Tribes from federal spending of public

monies for religious education for Indians. The former is

an exercise of tribal sovereignty not constrained by the

U.S. Constitution. Second, the cited federal expenditures

of public monies for religious education for Indians deserve

context. They were based on federal policy which included

forcing Indian children, with the assistance of churches

and religious organizations, to convert to Christianity,

as well as penalizing and criminalizing Native religions. 3

3. Some repudiation of this policy has occurred recently.

See, e.g., American Indian Religious Freedom Act of 1978, Pub. L.

95–341, 92 Stat. 469, 42 U.S.C. § 1996; Dep’t of Interior, B. Newland,

4

This Court’s precedent distinguishing between tribal

or tribe-directed expenditures of tribal monies and federal

expenditures of public monies for religious education is

well grounded and should not be disregarded. A central

principle of federal Indian law is that Tribes are sovereign

governments not subject to the entire U.S. Constitution.

Talton v. Mayes, 163 U.S. 376, 383-84 (1896). Therefore,

when Tribes spend tribal monies or direct the United

States to spend tribal monies, these expenditures are not

constrained by the Establishment Clause. See also Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 63 (1978) (noting

the omission of an Establishment Clause in the Indian

Civil Rights Act of 1968, Pub. L. 90-284, Title II, § 201,

82 Stat. 77, 25 U.S.C. §§ 1301-1303).

The sources of many tribal monies are the Treaties

between the United States and Tribes. These Treaties

typically provided for the United States to pay Tribes for

land acquired from Tribes (“treaty funds”). Many treaties

had provisions regarding Indian education. See Haaland

v. Brackeen, 599 U.S. 255, 298 (2023) (citations omitted)

(Gorsuch, J., concurring) (noting that over 150 treaties with

Tribes had Indian education-related provisions). Some

Treaties specifically dedicated a portion of the treaty funds

for education of the Tribe’s children. See, e.g., Quick Bear

Federal Indian Boarding School Initiative Investigative Report

(BIA Report Vol. I) (May 2022); Dep’t of Interior, B. Newland,

Federal Indian Boarding School Initiative Investigative Report

Vol. II (July 2024); U.S. Conf. of Catholic Bishops, Keeping Christ’s

Sacred Promise: A Pastoral Framework for Indigenous Ministry,

6 (2024) https://w w w.usccb.org /resources/ Indigenous%20

Pastoral%20Framework%20-June%202024-Final%20Text.pdf;

On Offering an Apology to Native Americans, Alaska Natives,

and Native Hawaiians—From the Presbytery of Baltimore (2016),

https://www.pc-biz.org/search/6350.

5

v. Leupp, 210 U.S. 50, 51 (1908) (citing Treaty Between

the United States of Am. & Different Tribes of Sioux

Indians, Feb. 24, 1869, 15 Stat. 635). In addition to treaty

funds, some Treaties provided for the United States to

appropriate other federal funds to be held in trust by the

federal government for Tribes (“trust funds”). These trust

funds also might be dedicated to Indian education. Id. 52.

In Quick Bear v. Leupp, this Court correctly held that

the United States’ use of the Rosebud Sioux Tribe’s trust

funds, guaranteed by treaty to the Tribe, for sectarian

schools on the Tribe’s reservation, did not violate federal

legislation that restricted appropriations to religious

organizations. 210 U.S. at 81. The Court reasoned, because

the funds belonged to the Tribe “as [a] matter of right,”

and were “theirs for education,” id. at 82, that federal

expenditures to “Fulfill[] Treaty Stipulations,” id. at 77,

could fund any school chosen by the Tribe—secular or

religious. To conclude otherwise would be to hold that

Tribes “cannot be allowed to use their own money to

educate their children in the schools of their own choice.”

Id. at 81 (emphasis added).

To put it simply, this Court differentiates between

federal spending for religious education of “money

appropriated to fulfill treaty obligations, to which trust

relationship attaches, and ‘gratuitous appropriations.’”

See Lincoln v. Vigil, 508 U.S. 182, 195 (1993) (quoting

Quick Bear). The latter, the expenditure of public monies

for religious education, is an issue for the Establishment

Clause, while the former is not. Amici respectfully ask this

Court to adhere to its precedent properly distinguishing

religious education funded by tribal monies and religious

education funded by non-tribal governments. Espinoza

6

v. Montana Dep’t of Revenue, 591 U.S. 464 (2020), does

not alter this settled legal distinction. Espinoza did not

address directly the tribal sovereignty basis for Quick

Bear’s holding, and Espinoza’s examples of historical

federal spending of public monies for religious education

for Indians suffer from the same lack of essential context

as Petitioners’ examples, discussed next.

The cited examples of historical federal expenditures

of public monies for religious education for Indians elide

entirely the now-discredited federal policy underlying

these expenditures. From its earliest days, United

States policy was “to induce the Indians to abandon their

mode of life, as hunters and warriors, and to cultivate in

them a taste for and aid them in adopting the pursuits

and manners of civilization.” In re Kansas Indians,

72 U.S. 737, 747 (1866). At the core of the policy were

efforts to convert Indian peoples, primarily children, to

Christianity. “To this end enlightened missionaries have

been encouraged to live among them as teachers. . . .” Id.

“Christianity was equated with civilization.” S. Rep. No.

103-411, at 2, 103rd Cong., 2d Sess. (1994). Simultaneously,

the federal government penalized, and even criminalized,

Native religions. Id.; see also Federal Agencies Task

Force, Report to Congress on American Indian Religious

Freedom Act of 1978, at 1–8 (Aug. 1979) (history of federal

persecution of Native religions).

From its inception and well into the twentieth century,

federal management of Indian affairs included suppressing

Native religions, S. Rep. No. 103-411, at 1, and providing

Christian religious education to Indians in schools not

chosen by Indians and operated by the federal government

or funded by the federal government but operated by

7

churches and missionaries. See BIA Report Vol. I, 25-31;

BIA Report Vol. II, 19. “[G]overnment officials as well as []

church leaders” understood that efforts to civilize Indians

through conversion to Christianity necessarily involved

churches, missionaries, and religious groups. Francis Paul

Prucha, The Great Father: The United States Government

and the American Indians 146 (1995). Civilization, including

conversion, was a federally directed and funded policy

implemented by churches and missionaries, who reported

their efforts and progress to the federal government. Id.

152, 155; BIA Report Vol. II, 19.

Following the Civil War, the relationship between the

United States and churches became further entwined.

With congressional authorization, President Grant

delegated the running of many entire Indian reservations

to churches and religious groups and to the newly-created

“Board of Indian Commissioners”—a board staffed

entirely with religious leaders. Prucha, Great Father 503

(citing 16 Stat. 40 (1869)). During this period, churches

and religious groups leveraged their delegated power

over Indian affairs to expand the increasingly churchrun but still federally instigated and maintained Indian

school system. Id. 503-512. There were direct federal

appropriations to and direct contracts with churches

which paid them per pupil for Indian students within their

schools. Id. 597.

But issues soon developed that the Founders

anticipated in drafting the Establishment Clause.

Competition between churches to obtain the most federal

contracts for Indian education, thereby becoming the

“preferred faith,” began to divide the religious groups.

Further, religious leaders, advocacy groups, and federal

8

officials, including members of Congress, increasingly

raised concerns about the constitutionality of the

entrenched church and state relationship, calling it “unAmerican.” Francis Paul Prucha, The Churches and

the Indian Schools 1888-1912 1-9 (1979). Some religious

leaders openly vocalized that the only solution to both

the rivalries and the entanglement was to cease federal

funding to churches. Id. 8.

Driven by cries for reform, in the early twentieth

century federal funding to churches was severely reduced

and then eliminated entirely. See Act of March 1, 1899,

30 Stat. 924, 942 (1899). The federal government assumed

direct control of most federal Indian schools. Prucha,

Churches 57. But Christianization of Indians endured.

Cloaked as the response to requests for separation of

church and state, federal officials ran the Indian schools

but employed church personnel for “Religious Instruction

in Government Schools.” Id. 161-170.

By the early mid-twentieth century, many aspects

of federal Indian policy were under scrutiny and

change was on the horizon. A 1928 study in cooperation

with the Secretary of Interior was a “comprehensive

and damning account of the failure of federal Indian

policies[.]” Felix S. Cohen, Cohen’s Handbook of Federal

Indian Law § 2.09[1] (Nell Jessup Newton ed., 2024

ed.), referencing Lewis Meriam, et al., The Problem of

Indian Administration, Inst. For Gov’t Rsch. (1928),

https://nar f.org /nill /resources/mer iam.html. The

Meriam Report “roundly condemned the shortcomings”

9

of the federal Indian “assimilationist era” and “harshly

critiqued” the federal Indian boarding schools. Id.

With the appointment by President Franklin

Roosevelt of John Collier as Commissioner of Indian

Affairs in 1933, the “Indian New Deal” officially began.

Id.4 Comprehensive changes involving tribal lands, selfgovernment, and cultures were contemplated to reverse

past assimilationist policies. The Indian Reorganization

Act (IRA) of 1934, Pub. L. 73-383, 48 Stat. 984, 25 U.S.C.

§ 5101, et seq., enacted many of these changes. Collier’s

reports and orders addressed compulsory attendance at

religious services in federal Indian boarding schools and

federal interference with Native religions. The Indian

New Deal encouraged state public school attendance

for Indian children, rather than federal Indian schools.

With new federal funding for Indians in public schools,

comparative attendance at these schools dramatically

shifted throughout the next several decades. Beginning in

the 1970s, the federal policy of Indian Self-Determination

included U.S. Congressional and Executive Branch efforts

in consultation with Tribes either to close or transfer to

tribal operation all but a few of the remaining once over

400 federal Indian boarding schools in this country. See

H.R. Rep. No. 100-744, pt. 1, at 8, 100th Cong., 2d Sess.

(1988).

But notwithstanding some repudiation, see supra

n.3, the federal policy’s history and its impact remain.

4. John Collier was among the founders of Amicus

A s s o c i a t i on . ht t p s : // w w w. i n d i a n - a f f a i r s . o r g / up l o a d s /

8 / 7/ 3/8 /873 8 0 3 5 8 /2 018 _defenders_of_native_lands_ pub_

fallwinter_2018_newsletter.pdf.

10

In particular, the troubled legacy of federal Indian

boarding schools comprises perhaps the darkest days

of the American republic. Thousands of Indian children

did not survive their conversion. Dana Hedgpeth, et al.,

More Than 3,100 Students Died At Schools Built to Crush

Native American Cultures, The Wash. Post (Dec. 22,

2024), https://www.washingtonpost.com/investigations/

interactive/2024/native-american-deaths-burial-sitesboarding-schools/. Federal efforts to drive Native religions

to extinction by penalizing and criminalizing them further

exacerbate this past. If these histories came before this

Court today, the actions of the United States likely would

face challenges based on fundamental principles against

establishment of national religion and in support of free

exercise of religion. Amici humbly ask this Court to

refrain from drawing on these histories to justify the

funding of religious schools and to inform the meaning

of the U.S. Constitution today.

ARGUMENT

This Section proceeds in three parts:

In Part I, Amici show that the examples of tribal

or tribe-directed treaty and trust fund expenditures

for religious education which this Court’s precedents

correctly ground in tribal sovereignty are inapposite

to the issues in these cases of non-tribal government

expenditures for religious education.

In Part II, Amici show that the examples of

historical federal expenditures of public monies for

religious education for Indians lack the needed context

of now-discredited federal policy which likely presents

11

Establishment Clause and Free Exercise Clause violations

which should not be misused to inform the Court’s

analyses of those Clauses in these cases.

In Part III, Amici show that the United States’

suppression of Native religions, an integral part of

historical federal policy, likewise should not be misused

to inform the Court’s decision making in these cases.

I.

This Cour t’s Precedents Upholding T ribal

Expenditures Of Tribal Monies For Religious

Education Are Inapposite To The Present Cases

Involving State Expenditures Of Public Monies

For Religious Education.

Petitioners and their Amici cite examples of

tribal treaty and trust fund expenditures for religious

education as historical evidence of direct United States

government expenditures for religious education. See

Brief for Petitioner Oklahoma Statewide Charter Sch.

Bd. at 4; Brief for Petitioner St. Isidore of Seville Catholic

Virtual School at 42; Brief Amici Curiae of Christian

Legal Society, et al. at 8–9. These examples, however, are

factually and legally distinguishable from whether the

State of Oklahoma may spend public monies on religious

charter schools.

Indian Tribes are “separate sovereigns pre-existing

the Constitution.” Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782, 788 (2014) (quoting Santa Clara Pueblo,

436 U.S. at 56). The inherent and continuing sovereignty

of Tribes over their own citizens is broad—“virtually

unlimited.” Merrion v. Jicarilla Apache Tribe, 455 U.S.

130, 160 (1982) (Stevens, J., dissenting). Tribal sovereignty

12

includes directing how tribal funds should be spent for the

benefit of Tribe citizens. See Quick Bear, 210 U.S. at 80.

This Court’s Indian law precedents acknowledge tribal

sovereignty and have created distinct legal frameworks

reflecting Tribes’ unique status within the United States.

This includes that Tribal governments are not subject

to the full force of the U.S. Constitution. Talton, 163

U.S. at 384 (holding that the Fifth Amendment does

not apply to “powers of local self-government enjoyed”

by the Cherokee Nation); see also Santa Clara Pueblo,

436 U.S. at 63 (noting the omission of the Establishment

Clause from the Indian Civil Rights Act of 1968, 25 U.S.C.

§§ 1301-1303).

In Quick Bear, individual citizens of the Rosebud

Sioux Tribe sued to prevent the Commissioner of Indian

Affairs from contracting with a sectarian organization to

run a sectarian school on the Tribe’s Reservation, paid for

with the Tribe’s treaty and trust funds. 210 U.S. at 50–53.

Stepping back, under an 1868 treaty between the United

States and the Sioux Indians, the Sioux ceded land and

other rights in exchange for the United States agreeing,

inter alia, to provide education for the Tribe’s children.

Id. at 80. Pursuant to further land cessions in 1877, the

United States expanded its commitments to provide the

Tribe with educational resources. Id. Pursuant to these

agreements, Congress appropriated specific funding

under the heading “Fulfilling Treaty Stipulations with,

and Support of, Indian Tribes.” Id. These funds, managed

by the United States, were thereafter used to pay for

educational services from a Catholic organization on the

Rosebud Reservation to benefit the Tribe.

13

The Quick Bear Plaintiffs asserted that the payment

of these funds to a sectarian organization violated legal

restrictions on government appropriations going to

sectarian schools. See Act of June 7, 1897, 30 Stat. 62, 79

(1897) (“And it is hereby declared to be the settled policy

of the government to hereafter make no appropriation

whatever for education in any sectarian school.”); Quick

Bear, 210 U.S. at 52. This Court ruled against Plaintiffs,

holding that the specific funds at issue could be used to

fund sectarian schools because they were not “public

money in this sense. It is the Indians’ money, or, at least,

is dealt with by the government as if it belonged to them”

and it represents the “price of land ceded by the Indians

to the government.” Id. at 80–81.

Quick Bear stands for the important proposition

that tribal sovereignty requires that Tribes be free to

“use their own money to educate their children in the

schools of their own choice[.]” Id. at 81. Thus, this Court

distinguished between funds expended by the United

States pursuant to tribal treaty and trust responsibilities

and the United States drawing on public money to fund

religious schools. Put another way, the expenditures in

Quick Bear did not trigger an Establishment Clause

analysis because there was no state action, the funds and

expenditures were credited to a separate sovereign—the

Tribe—not the United States or a state. This Court has

declined to review adherence by lower courts to this apt

distinction. See, e.g., Sac and Fox Tribe of Indians of

Okla. v. Apex Const. Co., 757 F.2d 221, 222–23 (10th Cir.

1985), cert denied, 474 U.S. 850 (1985) (observing “[t]he

Supreme Court recognized the distinction between tribal

funds and public monies. . . .” in Quick Bear); Scholder

v. United States, 428 F.2d 1123, 1129 (9th Cir. 1970), cert

denied, 400 U.S. 942 (1970) (same).

14

This same reasoning applies to the United States’

1803 Treaty with the Kaskaskia Tribe of Indians. Treaty

Between the United States of America and the Kaskaskia

Tribe of Indians, art. III, Aug. 13, 1803, 7 Stat. 78. The

cited Kaskaskia Tribe treaty provision, see, e.g., Brief

for Petitioner Oklahoma Statewide Charter Sch. Bd. at

5, regarding funding for religious purposes is analogous

to the expenditures in Quick Bear. The United States

agreed to a treaty provision with a separate sovereign and

thereafter appropriated funds according to those treaty

obligations. This example bears no relevance to the issue

before the Court, which is whether to allow the State of

Oklahoma—a government subject to the full force of the

U.S. Constitution—to fund religious schools.

Nor does Espinoza stand for Quick Bear establishing

a “‘historical and substantial’ tradition” of government

“ f inancia l suppor t to pr ivat e schools, including

denominational ones” without offending the Establishment

Clause. Espinoza, 591 U.S. at 480. Espinoza omits Quick

Bear’s central legal holding—the distinction between

the power of tribal governments to direct treaty and

trust fund expenditures for religious education and

expenditures by non-tribal governments of public monies

for religious education, the latter of which is the present

issue. Tellingly, the Espinoza Court did not discuss or

cite to Lincoln v. Vigil—a case that expressly noted

the distinction between expenditures of tribal monies

and public monies. Lincoln v. Vigil, 508 U.S. 182, 195

(1993). Continued adherence to this Court’s longstanding

precedent is critical for respecting and preserving tribal

sovereignty and self-determination. Finally, Espinoza

failed to address federal policy, discussed next.

15

II. Examples Of Federal Indian Boarding Schools Are

Paradigmatic Establishment And Free Exercise

Clause Violations And Should Not Be Misused To

Inform This Court’s Decision-Making In These

Cases.

The federal Indian boarding school era spanned

nearly two hundred years and was the lynchpin of the

federal government’s crusade to “civilize” Indian peoples.

Petitioners and their Amici cite federal Indian boarding

schools for their argument that the United States has a

history and tradition of providing monetary support for

sectarian schools. E.g., Brief for Petitioner Oklahoma

Statewide Charter Sch. Bd. at 4; Brief for Petitioner St.

Isidore of Seville Catholic Virtual School at 42; Brief

Amici Curiae of Christian Legal Society, et al. at 8-9. Yet,

their bare references to federal Indian boarding schools

omit the requisite context needed to understand this era.

Without the complete history, federal Indian boarding

schools might be viewed as an exemplary model of federal

and religious partnership, instead of one that should not

be repeated.

Historically, federal Indian boarding schools consisted

of both schools directly operated by churches and religious

groups that received federal funding and schools directly

operated by the federal government that required

religious education for Indians. See generally BIA Report

Vol. I; BIA Report Vol. II. At the core of both is the official

policy that spurred these schools: the policy whereby the

United States used schools to “civilize” Indian children

by converting them to Christianity. Prucha, Great Father

at 146.

16

The roots of this federal policy are deep. In 1776, the

Continental Congress passed a resolution that mandated

the “propagation of the Gospel” and the establishment

of ministers and teachers among the Indians. Prucha,

Great Father 139-140. When it came to Indians, of the

two perceived options: “civilization” or extermination,

“civilization” was preferred but could not be accomplished

without missionaries for conversion. R. Pierce Beaver,

Church, State, and the American Indians: Two and a Half

Centuries of Partnership in Missions Between Protestant

Churches and Government 63-64 (1966) (summarizing

1789 Secretary of War Henry Knox’s communication

to President George Washington). As federal policy

developed, it was clear that the “American civilization

offered to Indians was Christian civilization, [and] that

Christianity was a component of civilization and could

not and should not be separated from it.” Prucha, Great

Father 146; see also In re Kansas Indians, 72 U.S. at 747

(equating “civilization” with conversion to Christianity

because of the policy’s use of missionaries).

As the nineteenth century began, “civilization” was

conducted primarily by missionaries within mission

schools. Rather than establish a new federal school system,

the Superintendent of Indian Trade and missionaries

together merged existing mission schools with new federal

funding. Prucha, Great Father 148-151. In 1819, Congress

enacted the permanent Civilization Fund with $10,000

annual appropriations. Civilization Fund Act of 1819, Pub.

L. No. 15-85, 3 Stat. 516b. The Civilization Fund marked

the first time that consistent federal appropriations were

funneled to missionaries to serve federal goals. Robert H.

Keller, American Protestantism and the United States

Indian Policy 1869-82 6 (1983). By 1824, federal funding

17

supported the operation of 32 Indian and mission schools,

some of which were supplemented with the religious

groups’ own money. Prucha, Great Father 152. At its peak,

the Civilization Fund supported 52 Indian and mission

schools across the country. Id. 154.

Religious groups in charge of Indian schools reported

directly to the federal government. For example, a

missionary on the Creek Nation Reservation, R.M.

Loughridge provided in his annual report to the Secretary

of War “in compliance with the regulations of the War

Department,” the number of children within his school and

their progress toward “civilizing and Christianizing the

rising generation”—progress that required the children

remain “under the constant influence of the teacher,

both in and out of school[.]” Ann. Rep. of the Comm’r

of Indian Aff., 29th Cong., 2nd Sess., 150-151 (1846).

Missionary Loughridge further rejoiced that the policy of

Christianizing Indian children was “the policy adopted by

our government in regard to the appropriation of school

funds.” Id. 151. This documentation leaves no doubt that

the federal government charged the religious groups with

implementing federal policy.

In addition to the Civilization Fund, by the 1860s

direct contracts between the federal government and

religious groups significantly added more Indian schools.

Keller 208. These contracts generally paid religious

groups $167 per Indian student, Ann. Rep. of the Comm’r

of Indian Aff., 49th Cong., 2nd Sess., 136-137 (1886), and

resulted in nearly “every major denomination” signing a

federal contract. Keller 208. By 1886, the number of Indian

schools had reached nearly 300. Id. The direct contracts

continued for another fifteen years, see infra.

18

Collaborative efforts to “civilize” and Christianize

Indians expanded after the Civil War. Coinciding with the

end of the “Indian Wars,” see Cohen § 2.07[2], President

Grant signed into law the Peace Policy. Act of Apr. 10, 1869,

16 Stat. 40 (1869). The Peace Policy, like the Civilization

Fund, aimed to implement “the comforts and benefits of a

Christian civilization” to prepare the Indians “to assume

the duties and privileges of citizenship.” Francis Paul

Prucha, American Indian Policy in Crisis: Christian

Reformers and the Indian, 1865-1900 31-32 (1976). The

Peace Policy emphasized the widespread belief that

“Christianity alone could civilize the American Indians”

and that this could only be accomplished by increased

support of the federal government and increased delegated

powers to religious groups. Keller 3.

Structurally, the Peace Policy included two main

components. First, it established a centralized Board of

Indian Commissioners. Prucha, Great Father 503. Second,

it assigned on-reservation federal Indian agencies to

various Christian religious groups. Id. at 512; see also,

e.g., Ann. Rep. of the Comm’r of Indian Aff., 42nd Cong.,

3rd Sess. (1872) (discussing assignments). These actions

effectively delegated control of most aspects of federal

Indian affairs to select Christian religious groups.

Compr i sed of men f rom va r ious P rot est a nt

denominations, the Board of Indian Commissioners’ role

in implementing federal policy was two-fold. Prucha,

Churches 1. President Grant tasked the Board with the

authority to oversee the Office of Indian Affairs (OIA)

and with monitoring Christian religious groups’ Indian

“civilization” efforts. Allison M. Dussias, Ghost Dance

and Holy Ghost: The Echoes of Nineteenth Century

19

Christianization Policy in Twentieth-Century Native

American Free Exercise Cases, 49 Stan. L. Rev. 773,

779 (1997). Not just a liaison between the religious

groups and the United States, the Board was authorized

to recommend changes to federal policy. Id. The

Board’s recommendations included confining Tribes to

reservations, discouraging Tribal relations, establishing

schools with teachers “nominated by religious bodies[,]”

and encouraging missions. Prucha, Great Father 509-10

(citing 1869 Ann. Rep. of the Comm’r of Indian Aff.)).

The Peace Policy also divided up and assigned onreservation federal Indian agencies to various Christian

religious groups. Under this regime, the religious group

had the power to select the Indian agent and employees

for the assigned Indian agency. Keller 33; Prucha, Great

Father 517 (citing, e.g., Table 3: Assigning the Tulalip

Indian Agency in Washington Territory to the Catholics;

assigning the Navajo Indian Agency in New Mexico

Territory to the Presbyterians.) In total, nearly 75 federal

Indian agencies spanning across the entire Western

United States were apportioned to 12 different Christian

denominations. Prucha, Great Father 516-19.

Tension over these assignments generated conflicts,

as many religious groups viewed them as unjust. Prucha,

Great Father 523. Methodists and Protestants received

multiple Indian agencies, while Jews, Mormons, and

Catholics either were excluded from assignment altogether

or received fewer Indian agencies than expected. Keller

36; Prucha Great Father 523. The Catholics, who because

of previous missionary work, expected to receive thirtyeight agencies, were shocked to receive only seven.

Prucha, Great Father 523-24. Religious groups including

20

the Methodists, Protestants, Catholics, Episcopalians

and Quakers advocated for their own interests, but none

made a “move to grant so much as a hearing to the Indian

religions.” Id. 524. Nor was the federal government

concerned with “the Indians’ right to maintain and defend

their own religion.” Id. 525.

While interdenominational rivalry festered, the

federal government undertook another chapter of infamy

beginning with the Carlisle Indian Industrial School.

Founded in 1879 by U.S. Army General Richard Henry

Pratt, Carlisle was the model for what would become

the United States’ network of over 400 federal Indian

boarding schools. Brackeen, 599 U.S. at 299 (Gorsuch,

J., concurring). This model included forced assimilation

in contained environments in remote locations. Offreservation boarding schools were needed, the government

maintained, to isolate Indian children from their “savage

antecedents.” Id. at 298 (Gorsuch, J., concurring). Onreservation Indian schools allowed children to maintain

ties to their Native religions; thus, the further that Indian

children were from their Tribes and communities, the

easier it would be to assimilate them. Id.

Once children arrived at federal Indian boarding

schools, school officials took away their Indian names

and replaced them with English ones, cut their hair,

prohibited children from speaking their Native languages

or engaging in their Native religions, and prevented them

from freely associating with citizens of their own Native

Nations and communities. Id. at 300. These policies,

combined with physical, psychological, and sexual abuse

and abysmal living conditions led to devastating death

tolls: at least 3,100 Indian children died at federal boarding

21

schools, with 179 dying at Carlisle alone. See Hedgpeth,

et al., More Than 3,100 Students Died At Schools Built

to Crush Native American Cultures, supra, Hugh

Matternes, et al., Archival Research of the Carlisle Indian

School Cemetery, at 1 (2017), https://armycemeteries.

ar my.mil / Por tals/1/ Documents/CarlisleBarracks/

Archival%20Research%20Report%20-%20July%202017v2.

pdf?ver=2019-06-07-121535-723.

As federal Indian boarding schools proliferated, federal

appropriations for sectarian schools decreased. David

Wallace Adams, Education for Extinction: American

Indians and the Boarding School Experience, 1875-1928

72 (1995). Unaddressed concerns over separation of church

and state persisted. The newly appointed Commissioner

of Indian A ffairs, Thomas Jefferson Morgan, was

especially keen on ending the schools’ federal-church

partnership. Beaver 161-166. The 1889 Annual Report

of the Commissioner of Indian Affairs stated Morgan’s

position. No longer would the federal government directly

partner with religious groups in Indian education. Id. at

164; Ann. Rep. of the Comm’r of Indian Aff., 51st Cong., 1st

Sess. (1889). Instead, the government would erect its own

“compulsory, systemized, and comprehensive” education

system for Indian children. Beaver 164. Congress soon

followed. The Indian Appropriations Act of 1895 reduced

appropriations to religious groups in fiscal year 1894 by

twenty percent. Prucha, Churches 40. Subsequent annual

appropriations decreased and then ended altogether. Id;

Act of March 1, 1899, 30 Stat. 924, 942 (1899) (“this being

the final funding for sectarian schools[.]”).

This did little to keep the federal government’s hands

clean. Religious instruction continued in off-reservation

22

federal Indian boarding schools like Carlisle. See 1887

Superin. of Indian Educ. Ann. Rep. at 131; see also Prucha,

Churches 161-170 (chapter entitled “Religious Instruction

in Government Schools.”). Beginning in 1890, the federal

government issued a series of “Rules for Indian Schools”

mandating Indian children’s attendance at church services

and observation of the Sabbath. Prucha, Churches 161;

see also Ann. Rep. of the Comm’r of Indian Aff., 51st

Cong., 2nd Sess. (1890), Appendix at CXLVI (publishing

the Rules). The federal government also issued specific

regulations for worship in federal Indian boarding schools.

Prucha, Churches 214-216.

Notably, attendance at federal Indian boarding

schools was something that neither Indian families nor

Tribes could refuse or even impact. Indian parents had

no right to choose which school their children could

attend. Prucha, Churches 58 (citing Letter from Daniel

M. Browning, Commissioner of Indian Affairs, to W.H.

Clapp, Sept. 30, 1896). Other compulsory attendance

measures were darker, as when Indian children were

abducted from their families and Tribes under duress or

outright force. BIA Report Vol. I 36; Brackeen, 599 U.S.

at 299 (Gorsuch, J., concurring). Federal Indian agents

routinely withheld treaty-guaranteed rations to force

Indian parents to surrender their children. Ann. Rep. of

the Comm’r of Indian Aff., at 199 (1886). When parents

resisted, the federal government deployed the U.S. Army

with direct orders: “Take the children.” See The Native

American Boarding School System, N.Y. Times, https://

w w w.nytimes.com/interactive/2023/08/30/us/nativeamerican-boardingschools.html (emphasis added) (last

visited Apr. 4, 2025).

23

Many federal atrocities were called out in the 1928

Meriam Report. Lewis Meriam, et al., The Problem

of Indian Administration. The Report made specific

recommendations for major changes in vir tually

every aspect of federal Indian policy. With respect to

federal Indian boarding schools and their treatment

of Indian children, the Meriam Report found “‘frankly

and unequivocally,’ that ‘the provisions for the care of

the Indian children . . . are grossly inadequate’ and

recommended that the federal government ‘accelerat[e]’

the ‘mov[e] away from the boarding school’ system in favor

of ‘day school or public school facilities.’” Brackeen, 599

U.S. at 302 (Gorsuch, J., concurring) (cleaned up).

Key changes officially began with the Indian New

Deal. Cohen § 2.09. President Franklin Roosevelt

appointed John Collier as Commissioner of Indian Affairs

in 1933. Id. § 2.09[1]. Collier immediately issued executive

reforms regarding Indian religion and religious education

for Indians. Prucha, Great Father 951-52. In his first

departmental annual report Collier firmly stated that “[n]o

interference with Indian religious life or expression will

hereafter be tolerated. The cultural history of Indians

is in all respects to be considered equal to that of any

non-Indian group.” Dep’t of the Interior, Off. Indian

Affs., Circular No. 2970 (Jan. 3, 1934). Collier’s January

1934 directive titled “Regulations for Religious Worship

and Instruction” in government schools prohibited

“compulsory attendance at [religious] services” and

only allowed religious instruction if the Indian children

or their parents chose it. Prucha, Great Father 951-52.

Over the objections of churches, missionaries and other

critics, Collier insisted that Indians be granted the “fullest

constitutional liberty, in all matters affecting religion.”

24

Id. 952-53. Religious liberty did “not extend only to

Christians.” Id. 953.

Collier also initiated programs for bilingual education

and Indian arts and culture in the federal Indian

schools. S. Rep. No. 91-501, 155 91st Cong., 1st Sess.

(1969), https://narf.org/nill/resources/education/reports/

kennedy/toc.html. But with the IRA’s emphasis on tribal

governmental and economic autonomy, the federal role in

Indian affairs generally began to subside. Id. 13. Federal

Indian schools began to close and state public school

attendance for Indian children was encouraged with new

federal funding to public schools to educate Indians. Id.

14. Eventually, federal support for the role of Tribes in

formal Indian education emerged. See, e.g., the Indian

Self-Determination and Education Assistance Act of 1975,

Pub. L. 93–638, 88 Stat. 2203, 25 U.S.C. §§ 5301-5423

(Tribes can contract the operation of formerly federally

run elementary and secondary schools). In the 1970s and

1980s, the federal policy of Indian Self-Determination

affirmatively led to federal efforts in consultation with

Tribes either to close or transfer to tribal operation all

but a few of the remaining once over 400 federal Indian

boarding schools in this country. See H.R. Rep. No. 100744, pt. 1, at 8, 100th Cong., 2d Sess. (1988).

Amici present a very condensed summary of an

extensive and brutal federal policy at least with respect to

federal Indian boarding schools to show the paradigmatic

Establishment and Free Exercise Clause violations

that policy and those schools engendered. As this Court

considers the contours of these Clauses today, these

violations should be informative but not mischaracterized

or misused.

25

III. The United States’ Suppression Of Native Religions,

An Integral Part Of Historical Federal Policy,

Likewise Should Not Be Misused To Inform The

Court’s Decision-Making In These Cases.

Like the federal Indian boarding schools, the federal

government’s historical treatment of Native religions

should not be invoked improperly to determine the scope

of U.S. Constitutional religious protections at issue in

these cases. “The principle that government may not

enact laws that suppress religious belief or practice is so

well understood that few violations are recorded in our

opinions.” Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 523 (1993). Yet the history of

the federal government’s treatment of Native religions

defies this summary, since it is rife with abuses of “this

fundamental nonpersecution principle of the First

Amendment[.]” Id. Over the course of two centuries,

beyond schools, the federal government targeted Native

religions generally in an explicit attempt to “suppress

religious belief or practice.” See Report to Congress on

American Indian Religious Freedom Act of 1978 at 1–8

(history of federal persecution of Native religions).

These broad and pervasive federal policies are well

documented. In 1883, for instance, the OIA established

Courts of Indian Offenses. See Denezpi v. United

States, 596 U.S. 591, 594-95 (2022) (discussing the

establishment of these courts). Prompted by a call from

the Commissioner of Indian Affairs to suppress the “old

heathenish dances,” the OIA promulgated Rules for Indian

Courts that criminalized participation in “the ‘sun-dance,’

the ‘scalp-dance,’ [and] the ‘war dance,’” as well as the

“usual practices of so-called ‘medicine-men.’” Letter

26

from Hiram Price, Commissioner of Indian Affairs, to

Henry M. Teller, Secretary of the Interior, Mar. 30, 1883

(Rules Governing the Court of Indian Offenses); see also

Denezpi, 596 U.S. at 607 (Gorsuch, J., dissenting). Native

religious practitioners and participants faced sanctions,

including the withholding of rations or “incarceration in

the agency prison.” Hiram Price, Rules Governing the

Court of Indian Offenses. Federal Indian agents also

resorted to threats of military force and the destruction

of Native dance houses. Ann. Rep. of the Comm’r of Indian

Aff., 190-191 (1889) (reporting that Kiowa Tribe medicine

dance was “demoralizing and degrading and that it should

not be permitted . . . I was advised to take immediate steps

to prevent it, and if necessary to call on the military for

aid to enforce the order.”); see also Dussias, Ghost Dance,

49 Stan. L. Rev. 791-792.

Enforcement of these policies included the following

examples. In the late 1880s, federal officials panicked

over the Ghost Dance, a religious revival begun by

the Paiute prophet Wavoka in Nevada but that quickly

spread throughout the American West. See Louis S.

Warren, God’s Red Son: The Ghost Dance Religion and

the Making of Modern America 211 (2017) (“As the new

faith advanced, so did official alarm.”). In response, the

federal government dispatched the U.S. Army to suppress

the dance on the Pine Ridge Reservation in South Dakota

and arrest its adherents—an effort that culminated in the

Wounded Knee Massacre, where the military murdered

nearly three hundred Lakota. Id. at 271-94. In the early

twentieth century, Christian missionaries pressured

federal officials to target dances among the Pueblo

Nations of the American Southwest. Tisa Joy Wenger,

We Have a Religion: The 1920s Pueblo Indian Dance

27

Controversy and American Religious Freedom (2009).

The Commissioner of Indian Affairs duly issued a circular

instructing agents to use “punitive measures” to limit the

dances, which later included attempts to constrain their

number and timing and restrict attendees to those over

50. Dussias, Ghost Dance, 49 Stan. L. Rev 802-805.

It is difficult to imagine clearer violations of Free

Exercise rights than these specific policies and their

enforcement. But there was little serious contemporary

argument over or questioning of the constitutionality of

the federal government’s actions. At the time, the federal

government assumed itself to be the “guardian” of its

Indian “wards.” See Felix v. Patrick, 145 U.S. 317, 33031 (1892). This was the basis for its treatment of Native

religions which were seen as an obstacle to its overriding

goal of Indian “civilization.” See Dussias, supra, at 794

(“The agents assumed that the government had the

authority to suppress specific religious practices of its

Native American wards, because their practices were not

Christian and were obstacles to civilization.”).

As with the federal Indian boarding schools and other

aspects of federal policy, the 1930s Indian New Deal

officially began reforms, many of which have continued.

See supra, Commissioner Collier’s reports and orders; see

also the American Indian Religious Freedom Act of 1978,

Pub. L. 95–341, 92 Stat. 469, 42 U.S.C. § 1996. But as this

snapshot of profound tragic history amply demonstrates,

the federal government’s actions in this area likely violated

even the most basic and limited understanding of what the

Free Exercise Clause protects. Accordingly, this history

should not be invoked improperly to guide the Court’s

interpretation of that Clause.

28

CONCLUSION

Petitioners and their Amici’s examples of a purported

historical tradition of federal funding for religious

schools involving Native Nations, federal Indian boarding

schools, and Native religions are either inapposite or lack

appropriate context. To resolve these cases, the Court

need not disturb or invoke its precedents regarding

tribal sovereignty over tribal expenditures of tribal

monies. Nor should the examples of federal expenditures

of public monies for religious education for Indians be

cited superficially without accurate explanation of their

underlying context.

Respectfully submitted,

John E. Echohawk

Counsel of Record

Melody L. McCoy

Beth Margaret Wright

Native A merican

Rights Fund

250 Arapahoe Avenue

Boulder, CO 80302

(303) 447-8760

jechohwk@narf.org

Morgan E. Saunders

Native A merican

Rights Fund

950 F Street, NW,

Suite 1050

Washington, DC 20004

Counsel for Amici Curiae

April 7, 2025