Sara Shapiro writes about the larger implications of Lyng v. Northwest Indian Cemetery, a legal case where the Supreme Court considered a free exercise challenge to the construction of a road through the High Country of California used by American Indian groups for religious ceremonies. 

Beneath a veneer of the procedure, you will find a dark history of settler-colonialism, stolen land, and cultural violence in the troubling canon of indigenous case law. While the legal veneer is universal, perhaps nowhere is it more important than in law involving indigenous Americans (scholarly known as “Indian law”). In these cases, indigenous individuals must argue for their basic rights in courts that sit upon the land that is fundamentally and rightfully theirs, often to ears that are unwilling to listen.

Lyng v. Northwest Indian Cemetery (1988). You’ve probably never heard of it unless you’ve delved deep into literature concerning indigenous justice or twentieth-century environmentalism or first amendment discourse (or maybe all three). The case is shrouded in that sort of secrecy that cloaks perniciously underground Supreme Court rulings; the type of rulings that only emerge in times of extreme political relevance, after which they recede back, existing only to further disenfranchise when cited for their precedence.

Overview of the Case

In Lyng, a coalition of indigenous folks from the Yurok, Karuk, and Tolowa Nations, alongside members of environmental groups, brought a class action suit against the U.S. Secretary of Agriculture. They were advocating against a proposal to build the so-called G-O Road through the High Country of California, a tract of public land considered sacred by the aforementioned Nations. The High Country and its associated Doctor and Chimney Rocks possesses healing powers and medicinal resources essential for Native folks in the named Nations to practice their respective religions.

The suit made its way to the Supreme Court, rare for any indigenous claim, but especially rare for the case of sacred land. This was an opportunity for the Court to affirm the first amendment rights of indigenous individuals, maybe even recognize that said land was rightfully indigenous and wrongfully seized.

The Court, however, charged in the opposite direction; it held that the federal government did have the constitutional right to build its road so it could access valuable timber despite the severe first amendment violation inherent within.

The decision is primarily cited in legal scholarship because of the voraciousness with which the Court dismantled the first amendment vis-a-vis how the amendment was previously conceived. But what are we missing when we view precedent-setting case law only through a legal paradigm, even that which critiques decisions that are oppressive to marginalized communities?

The Decision

The Court’s decision, written by Justice O’Connor and joined by Justices Rehnquist, White, and Scalia, reversed a lower-court decision that blocked the G-O road, deeming it an unnecessary infringement on the individuals’ first amendment right to freedom of religion, specifically the free exercise clause. Both benches agreed that the G-O road was by no means a necessary piece of infrastructure: the timber that the government sought was attainable by other means, no jobs were going to be created because of the road, the Forest Service was not going to receive a competitive benefit because of the road, and it was understood that the infrastructure was going to harm local ecosystems.

Lyng would have easily failed a compelling interest test, usually applied to government infringements of fundamental individual rights, had such a test been meaningfully applied. But instead, the Court underwent a series of mental gymnastics to hold that, “the free exercise clause is implicated only by government actions that coerce individuals into violating their beliefs.” In other words, as long as the governmental body in question is not actively forcing a group to violate their beliefs, it is constitutionally permitted to block that group from practicing said religion.

So, if the government happens to build a piece of infrastructure that utterly and completely destroys a group’s ability to practice its religion, well, too bad, since no one is forcing that group to violate their belief system. Basically, the road was being built because it could, and all the insurmountable barriers it constructed for indigenous folks were treated as unavoidable side effects rather than the epicenter of harm.

The question: Why did a Court that had previously held freedom of religion in the highest esteem desecrate the amendment in order to build a superfluous road?

The answer: A deep-seated desire and need to to constantly claim legitimacy over public lands that lose their ownership status once contextualized in the deeply-American history of colonialism and the seizing of indigenous property.

After all, the Court was built on the assumption that the land on which it stands is land that is rightfully its own; if it suddenly held that the government did not have unlimited domain over its land, the judges would be calling into question their own institution’s legitimacy.

The Seizure of the Land

Prior to being colonized, the High Country was not treated useful only for its market value. Rather, the people for whom the land is sacred respected and venerated the land for its healing powers as well as the tangible medical resources indigenous doctors obtained from the tract. Once white colonizers arrived, the High Country was commodified, which quickly led to dispossession, paving the way for Lyng.

Congress ensured that California’s most “desirable” land, including the High Country, would not be incorporated into Indian reservations, preserving it for state use. When an illegal seizure is normalized, it becomes easy to argue that the building of a road is legitimate.  

Thus, the High Country was rendered “public land” – but for whom?

Fast forwarding to Lyng, the Court understood this history. This was not an instance of the judiciary conveniently forgetting some important pieces of reality; the majority held that “it is undisputed that the Indian respondents’ beliefs are sincere and that the Government’s proposed actions will have severe adverse effects on the practice of their religion.” These – usually strict interpreters of the Constitution – did recognize the irreparable harm the G-O road would cause and they also believed that affirming indigenous rights would delegitimize the Court – the very American institution granted with the power to confer legitimacy.

Only a Court that two-hundred or so years prior had legalized the theft of indigenous land would have to keep reminding everyone, and itself, that the land really was its. The judges, in what almost reads like a parody of itself, held that “[w]hatever rights the Indians may have…those rights do not divest the Government of its right to use what is, after all, its land.”

Lyng should be read as, first and foremost, a reminder that the courts were, and remain, agents of settler-colonialism that have committed a great theft and will continue to uphold that theft for their survival. Under a Western framework, ownership is the most important relationship a person or institution can have with the land, therefore superseding all other relationships, as visceral and imperative as those might be.

We must recognize that behind Lyng’s procedural language exists a set of political values that obscures histories of capitalistic exploitation, colonial seizure, and structural oppression. While, for the Yurok, Karuk, and Tolowa peoples the High Country is spiritually essential, the tracts of land, to the Forest Service and the Court, simply represented an unharvested site of timber and economic gain.

The Problem with “Mainstream” Solutions

How do we make sense of a situation in which the experts were aware of Native folks’ differing perspective on the land and yet willed desecration with enthusiasm? Usually, we say that we all need to listen more. But Lyng makes it clear that passive engagement is not enough. Engagement does not denote respect and, when it is passive, can rather serve to legitimize that which would otherwise be seen as wholly oppressive. The Court also tends to engage with indigenous realities in a way that essentializes all indigenous folks as being one entity.

The law leaves little room for spiritual nuance

While it is clear – given the Court’s disregard of indigenous claims – that American institutions value their own knowledge and perspectives over those of Native peoples, the solution is not as simple as providing an avenue for indigenous perspectives to be heard. These avenues tend to be elitist echo-chambers that confer their own legitimacy from ignoring such perspectives. In Lyng, many tribal spokespersons were reluctant to speak about the High Country both due to the cultural norm of not speaking explicitly about the land as well as communal fear that explicating exactly what is most powerful and imperative about such land would just further empower dispossession and destruction.

And, of course, they were right to be skeptical.

In Lyng, the narrow reading of the first amendment is fundamentally at odds with the way Native religion functions in everyday spiritual life. The decision acts far more perniciously re: indigenous communities for whom religion, spirituality, and healing are embedded in physical spaces. It’s easy enough for the Court to decide that these first amendment claims – in which the government is not coercing a group of people to violate their beliefs – are invalid when those claims are basically only viable for groups that rely on the land for spiritual life (read: indigenous communities). This was not an attack on the first amendment rights of Christian Americans, and to interpret it as such, even in a theoretical manner, disrespects the reality of indigenous spirituality.

As a report commissioned by the U.S. Forestry Service, known as the Theodoratus Report, stated, “any division into ‘religious’ or ‘sacred’ is, in reality, an exercise which forces Indian concepts into non-Indian categories and distorts the original conceptualization in the process.” Clearly, the Service didn’t care, as they forged ahead with the project, but the report demonstrates a prescient understanding that when we force indigenous spirituality to fit into Western categories of what constitutes religion and what demands first amendment protection, we allow judges to simply deny that protection altogether.

The G-O road was never finished for separate reasons, but Lyng remains unchallenged. Yurok leaders note that their people have been separated from the land due to its seizure and twentieth-century assimilationist policies, underscoring the need to look beneath the veil to understand the impacts and contexts of legal decisions. When we allow case law, especially that concerning settler-colonialism, to go unproblematized, we allow the Court to solely arbit the dominant historical narrative and we facilitate the Court’s echo-chamber decrees that it is a wholly legitimate institution, despite its rocky standing on stolen land.

Sara Shapiro

Sara Shapiro is a Generation Z Voice at The Pavlovic Today. Her interests include congressional investigations, youth social activism, public interest law, environmental justice, and reproductive justice....