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.