American Indian Heritage Month: Commemoration vs. Exploitation
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Lyng v. Northwest Indian Cemetery Protective Association

This 1988 U.S. Supreme Court case concerned the protection of American Indian religious practices. The case exemplifies the difficulties that courts have in recognizing the holistic, connected nature of indigenous religious practices as opposed to mainstream religions and in applying constitutional religious principles to peoples not originally protected by such principles. The six justices who ruled in the majority stressed that the U.S. government was not prohibiting the free exercise of religion of members of three tribes by building a road near and allowing tree harvesting within a half mile of certain traditional ritual sites in the Chimney Rock section of Six Rivers National Forest.

Since the First Amendment applies only if the government prohibits the free exercise of religion, the constitutional claim of the American Indians failed. The majority felt that to rule otherwise would give the tribes effective ownership over public, government-controlled and -owned lands. The three dissenting justices noted that the Forest Service commissioned the Theodoratus Report, which examined Native religion. For Native peoples, land is living and the relationship to land and the natural world is an ongoing relationship of creation. These justices saw that the road and harvest would destroy the Indian religious practices and that the government should have a compelling interest before going ahead with the project.

In the 1970s, the U.S. Forest Service upgraded roads on federal lands in northern California. Part of the project included the Chimney Rock area of the Six Rivers National Forest. The Hoopa Valley Indian Reservation adjoins the national forest. The Chimney Rock area was used by the Indians for religious ceremonies and was considered especially sacred. The 1977 Forest Service draft environmental impact statement discussed the detailed project plans. The Forest Service commissioned a study of cultural resources of the area, the Theodoratus Report (1979). This study supported a 1979 recommendation not to proceed with the road project because of the irreparable and serious damage to the sacred areas so central to the Hoopa belief systems.

In 1982, the Forest Service decided not to follow the report. The road would be built in Chimney Rock as far away as possible from specific ritual sites. Routes that would have avoided Chimney Rock were rejected because they would involve the acquisition of private land. In addition, a management plan was approved that allowed substantial cutting down of trees in Chimney Rock with a half-mile distance between protected sites and the harvest. Thus, specific areas were preserved while the nature of the entirety was altered.

The majority opinion, by holding that the government had not prohibited the free exercise of any religion, negated the need to apply the test. The government, as landowner, was simply managing its land for the benefit of all. To allow the diminution of the government's property rights was substantial, and the Forest Service was not required to accommodate the Natives' religious needs either constitutionally or statutorily by the American Indian Religious Freedom Act, which created no cause of action or enforceable rights according to the Court. In any event, the government had accommodated the Indian religious practices by the half-mile zone and the placement of the road.

The dissenting justices attempted to understand the differences between European-derived religious practices and American Indian religious practices. The former is church-based, and the government is an entity apart from the church. For many American Indians, spirituality pervades everything. For them, the attempts to build the road and harvest the trees while providing some core area protections essentially destroyed the practice of their religion and cultural beliefs. Such action clearly fails to accord with the First Amendment.

Michael W. Simpson

Further Reading
Lyng v. Northwest Indian Cemetery protective Ass'n., 485 U.S. 439 (1988).; Getches, David H., Charles F. Wilkinson, and Robert A. Williams, Jr. 1998. Cases and Materials on Federal Indian Law, 4th ed. American Casebook Series. St. Paul, MN: West.; Pinter, Jeff. 2004. "Note: In Cases Involving Sites of Religious Significance. Plaintiffs Will Fall in the Gap of Judicial Deference That Exists Between the Religion Clauses of the First Amendment." American Indian Law Review 29: 289–318.; Reivman, Joshua D. 1989. "Comment: Judicial Scrutiny of Native American Free Exercise Rights: Lyng and the Decline of the Yoder Doctrine." Boston College Environmental Affairs Law Review 17: 169–199.

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