Amy Bowers and Kristen Carpenter have posted a very nice historical and sociological piece, Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Ass’n. Lyng is a very famous religious liberty case, in which the Supreme Court denied a free exercise claim by a Native American group which objected to the federal government’s plan to build a road through its sacred lands. The abstract follows.
In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.
CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.
Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.
The following is a call for papers for an interesting looking conference at Oxford in September dealing with new approaches to thinking about punishment. I reproduce it here because one of the concepts it raises is religious and/or spiritual punishment. Interested parties should contact firstname.lastname@example.org.
The concept of punishment has a long history and diverse cultural, social and criminological meanings. Research and debate is often focused on the offender, the offence, the state and legal codification. In contrast, this project seeks to re-frame these debates in order to combine the insights they produce with broader cultural meanings, social representations and ritualistic or other activities. Therefore, the aim of the project is to develop different ways of understanding the penetration and complexity of shared understandings of punishment from a variety of perspectives, approaches and practitioner experiences. Reframing the debate might be done through papers aimed at the personal or social levels. We encourage unique approaches to punishment in terms of boundary control, whether it is control of evil, the politically subversive, the economically disruptive, or punishment in pursuit of system stability or marginalisation of liminality. Papers might also cover punishment issues relating to defining the contours of disgust, desire, dread, or the abject. They may even consider the operation and consequences of both wrongdoing and various forms of societal/social punishment. Accordingly the project welcomes papers, work-in-progress and pre-formed panels from diverse areas of study such as the humanities, social sciences, business, science, law schools and the arts, as well as practitioners.