A Hollow Freedom: On Lyng v. Northwest Indian Cemetery Protective Association

In 1988 the United States Supreme Court declared constitutional the federal government’s development plan in an area (known as the High Country) that was considered central to the religious practice of the Yurok, Karuk, and Tolowa Indian nations. The Court admitted 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.” Nevertheless, because the disputed area was on public land, the Court thought that the government should be allowed to manage its property in any way it saw fit, regardless of the severe adverse effects on the religious practice of the local Indian nations. A lot has been written about this case, Lyng v. Northwest Indian Cemetery Protective Association (1988). One thing scholars have failed to attend to, however, is the declaration of a study that served as central evidence in the case that the practice in question was questionably religious. “Because of the particular nature of the Indian perceptual experience, as opposed to the particular nature of the predominant non-Indian, Western perceptual experience,” the Theodoratus Report claimed, “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.”

This case raises, therefore, questions about the relationship between law and religion in the United States, and specifically in the context of American Indian rights. Why was Lyng argued as a case about religion? If it is not about religion, what is it about? I would like to propose here that this case, referred to by Yurok and Karuk Indians as “the GO Road case,” is as much about Indigenous sovereignty as it is about American Indian religious freedom. The question of Indigenous sovereignty does not come up in the Lyng decision, and understandably so (neither the original lawsuit nor the writ of certiorari was based on any treaty and the area in dispute is not part of any of the tribes’ reservation). But, Justice Brennan’s dissent does offer us a theory of indigeneity, which I would like to explore here. I will then argue that this celebrated dissent depoliticizes indigeneity, largely as a result of the religious freedom framework, and that thinking about the GO Road case as one about Indigenous sovereignty would open up questions that are ignored by all the courts that heard the case and by most scholars who have written about it. I offer this reading of the case as a prototypical one – I believe its problems characterize all cases about American Indian religious freedom. 

In his dissent, Justice Brennan points to the absurdity created by focusing on one aspect of this land (as federal property) and ignoring another aspect of it (as a place of American Indian worship), which causes the “gravest threat to their religious practices.” As he puts it, “the Court believes that Native Americans who request that the Government refrain from destroying their religion effectively seek to exact from the Government de facto beneficial ownership of federal property.” Thus,Justice Brennan lays the ground for critiquing U.S. legal conceptions of land and of religious freedom as deeply intertwined. Moreover, he makes it clear that it is a conception of land as property – rather than an interpretation of free exercise – that leads to the Court’s decision.

Justice Brennan dissents “because the Court today refuses even to acknowledge the constitutional injury respondents will suffer, and because this refusal essentially leaves Native Americans with absolutely no constitutional protection against perhaps the gravest threat to their religious practices.” Brennan acknowledges that “for Native Americans religion is not a discrete sphere of activity separate from all others.” He quotes from the Theodoratus report, saying that “any attempt to isolate the religious aspects of Indian life ‘is in reality an exercise which forces Indian concepts into non-Indian categories.’” This acknowledgement of Western intellectual imperialism seems very progressive and welcome in a Supreme Court decision, even if only as part of a dissenting opinion. I wonder, though, if we could not take this logic a step further, and think about religious freedom as an unsuitable category for the pursuit of justice by American Indians altogether. Scholars such as Tisa Wenger and Joanne Barker have discussed this issue in other contexts, writing that the conflict over Native American religious freedom always involves the investigation whether the practice in question is “authentically” religious. Religion as a set of beliefs, practices, and institutions that can be separated from other spheres of life is a uniquely European colonial concept, and American Indians started to use it only after contact, to refer to Catholicism, referring to their traditional ceremonies as “custom.” Adopting the concept of religion for pragmatic reasons in cases such as Lyng is a strategy that tends to fail. Whether or not we agree that framing the case as one about religious freedom is problematic, as it leads to a (depoliticized) debate over the religious nature of the relationship between Indigenous peoples and lands, we can still see a potential in making land central to the debate, as this necessarily makes the debate into one about indigeneity.

Brennan mentions stewardship – “the individual’s relationship to the natural world” – as a “pervasive feature” of Native American lifestyle, calling this relationship “the Indian religious experience.” He explains Native American religion at length, but for the purpose of this post, the following sentence is key: “Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. […] land is itself a sacred, living being.”

Comparing Lyng to Wisconsin v. Yoder (1972), Brennan acknowledges the strong locality of Indigenous lives. This is important, but it also produces indigeneity as fundamentally unique – different not only form the majority culture but also from other minorities. I return to this point shortly.

Brennan’s strongest words appear in the final section of his dissent. This case, he writes, represents yet another stress point in the longstanding conflict between two disparate cultures – “the dominant western culture, which views land in terms of ownership and use, and that of Native Americans, in which concepts of private property are not only alien, but contrary to a belief system that holds land sacred.” The Court, he continues, avoids addressing these “potentially irreconcilable interests,” turning the task to the legislature. In his view, “Native Americans deserve – and the Constitution demands – more than this.” The aftermath of the case is worth mentioning here. Though the Indian respondents lost the case in the Supreme Court, the California Wilderness Act and the Smith River National Recreation Area Act do protect the area from development – preserving its quiet, secluded nature that is so important to the nations’ lives. This conclusion raises doubt about the Court’s ability to promote social change and about the usefulness of litigation in a postcolonial context – doubts that Justice Brennan seems to be aware of in this passage.

            But Brennan’s dissent becomes an exploration of indigeneity – Native Americans consider all land sacred – rather than a discussion of a specific area, that for reasons not mentioned in the dissent ended up not being a part of Indian country. The relationship between the Yurok, Karuk, and Tolowa nations and the High Country has a complex history, and the category under which it should be thought of, I argue, is that of Indigenous sovereignty. One of this relationship’s dimension is undoubtedly religious, but it is also cultural, communal and political. As Lowana Brantner, one of the witnesses in the GO Road trial explains, the High Country has become so important to the Yuroks and Karuks because of the desecration of other sacred areas throughout the years, a process that has left the High Country the only untouched area: “Unbeknownst, unknown to me and my people, we didn’t know that the BIA, even though we had a treaty which we didn’t know later that it was not ratified – we gave all we had promised, why beyond the mountains for them for the land that we were to have in there, to keep our homes. In that way we lost everything and now we are standing on the last peak, Doctor Rock, Chimney Rock.” (Reporter’s Transcript, 230)

Focusing on the general sacredness of land to American Indians is problematic. It does not distinguish between northwest California Indians, with their specific history of contact, and other Indigenous peoples; even though it does acknowledge that “certain lands” are “more powerful and more directly related to their religious practices,” this qualification is secondary; it is not as important as the sweeping characterization of Native Americans as people who consider the land sacred. The tendency of courts to essentialize indigeneity is discussed and critiqued by scholars of law and of ethnic studies. One of the characteristics of Indigenous difference as it is produced in legal discourse is the connection between Indigenous peoples and the past, making Indigenous identity static, ignoring its flexibility and evolution with time, especially through its encounter with and survival of colonialism. Here is how Brennan does it in his final words about Lyng: “today’s ruling sacrifices a religion at least as old as the Nation itself, along with the spiritual well-being of its approximately 5,000 adherents, so that the Forest Service can build a 6-mile segment of road that two lower courts found had only the most marginal and speculative utility, both to the Government itself and to the private lumber interests that might conceivably use it.”

The witnesses in the trial and the Theodoratus Report (which served as the main piece of evidence in the GO Road trial) together make it clear that what would be destroyed if the High Country is developed is much more than a religious practice or the spiritual well-being of the religious practitioners. The context that they provide in the stories that they tell is crucial to understanding the Lyng case as one that is about Indigenous sovereignty rather than about mere free exercise. Unfortunately, these trial materials are not considered as important a part of law as Supreme Court decisions. They are not studied at law schools and they are not read by scholars of Indigenous religions. But they provide invaluable context. Thus, for example, Yurok-Hupa elder Jimmie James responds to a question about his traditional upbringing: “I was taught from both sides of my family, although the Bureau of Indian Affairs tried to take that away from us and tried to teach us to live as a white man, but I always went back, because I had a hunger for the Indian teaching. I followed that through life.” (Reporter’s Transcript, 57)

Yurok-Karuk witness Chris Peters notes the difficulty of translating Indian concepts into Western ones, thus hinting at the absurdity of the attempt to argue an Indian case in settler courts. But for him arguing the case in the Supreme Court is part of a larger project of revitalization: “Today Indian people are standing together to ensure that our children will have the rights and freedom to practice our religious customs.” (Reporter’s Transcript, 78) Contextualizing the Go Road case historically, he sheds light on this last assertion. The GO Road was first proposed in the late 1950s, when “Indian people were going through some changes.” The previous generation in the area experienced what Peters calls “a holocaust”: “The miners, the settlers, and the early loggers brutally killed and murdered significant numbers of Indian people. As a reaction to that […] the federal government enacted laws and legislation that made it against the law for Indian people to practice their religion.” Peters goes on to describe assimilation policies that the witnesses, their parents, and grandparent, have been affected by, including boarding schools, that effectively disabled cultural continuity: “They were sons and daughters of people who were herded onto reservations and rancherias in the State of California, and exposed to diseases and exposed to more murders – so Indian cultures in the past few generations have been weakened.” This context helps us to understand the struggle against the Go Road and the development of the High Country as part of a project of revitalization. As Peters says “we want to continue our identity.” (82)

A legal decision that does not take this context into account participates in the production of indigeneity as static and depoliticized. Scholars are often worried that the Court does not understand Indigenous religion because – unlike Protestant religion – it is grounded in sacred places. In the GO Road case, neither the government nor the Court doubted the religiosity of the practice for which the Yurok, Karuk, and Tolowa nations sought protection. Indeed, it was this sweeping agreement that allowed everyone to ignore the context brought up by the witnesses and in the evidence. In this way, arguments about religious freedom obscured the true issues at stake.

The Court is, of course, unlikely to overturn Lyng. It is the courts’ function to translate human stories into legal language, to convert communities into rights-bearing individuals. But scholars and activists are not limited to existing legal frameworks. If the religious freedom at the center of Lyng is “hollow,” as Justice Brennan declares, we need to strive for an alternative, more substantial freedom: we need to strive for sovereign freedom.