The philosophies of Michel Foucault have long been applied to various cultures and social movements in hopes of gaining insight into how power operates within a societal framework. One philosophy, Foucault’s conception of “biopolitics,” refers to the state’s regulatory control over the population as a whole, or its ability to control the life and death of the citizenry. Instead of exercising power at the level of each individual, “biopower” is exercised on the level of the population; it is the power to make live and let die.
Indian nations have been battling for sovereignty—freedom from external control in determining the direction of their life—since the founding of this country. Throughout its relatively short history, the United States has espoused a number of varying policies directed towards Native Americans and tribal culture. These policies, manifested through various congressional acts and case law, have had differing impacts on native culture. One noteworthy example is the Religious Freedom Restoration Act (RFRA), which despite its noble purpose, has proven to have a negative effect on tribal culture. The Ninth Circuit has erected hurdles that tribes must face in order to establish a valid claim under the RFRA. Beginning with its ruling in Navajo Nation v. U.S. Forest Service, the Ninth Circuit has consistently denied tribes’ claims under the RFRA because evidence of “damaged spiritual feelings” is insufficient to prove that practice of their religion was substantially burdened.
This Comment explores the connection between the philosophy of Michel Foucault and current Ninth Circuit sacred site cases, primarily Navajo Nation v. U.S. Forest Service. Part II of this Comment discusses Foucault’s philosophies on biopower. Part III briefly explores the evolution of federal Indian policy. Part IV provides background on Native American religions and their connection to the land. Part V outlines the Ninth Circuit’s legal framework for protecting native religions. Part VI concludes the Comment, arguing that the test developed from Navajo Nation should be reconsidered because of its biopolitical effect on Native American populations. In its place, a new test should be implemented that takes into consideration the unique character of the link between native religion and the land.
Jessica M. Erickson, Making Live and Letting Die: The Biopolitical Effect of Navajo Nation v. U.S. Forest Service, 33 SEATTLE U. L. REV. 463 (2010).