From Religious Freedom to Indigenous Sovereignty: The Case of Lyng v. Northwest Indian Cemetery Protective Association (1988)

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 three local American 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), but one thing that scholars have not paid attention to is the declaration of a study that comprised the central evidence in the case, according to which seeing the practice in question as religious is problematic, because it forces an Indian practice into a Western category. This case, therefore, raises questions about the relationship between law and religion in the United States, and specifically in the context of American Indian rights. Why was this case argued as one about religion? If it is not about religion, what is it about? In this dissertation I offer two readings of this case. In Part One I read this case as it is normally read, as a case about religious freedom. I read the Supreme Court decision, which does not doubt the religiosity of the practice, its sincerity, and the burden imposed on it by the government’s development plan and nevertheless denies it First Amendment protection, against the body of precedent available to the Court as well as the evidence and testimony provided in the original District Court trial. I argue that a broader understanding of religion calls for constitutional protection of this practice. But I find this reading to be missing something, and it has become less satisfactory to scholars of law and religion who have recently doubted the free exercise route as one that is useful for religious and racial minorities. In Part Two I suggest reading this case as one about Indigenous sovereignty. I read the dissenting opinion in the case against the background of the evidence and testimony in the trial as well as scholarship on sovereignty and on indigeneity. But sovereignty – just like religion – is a Western concept, and applying it to American Indian nations requires some critical adjustments as well. Listening to the voices of American Indian witnesses and scholars, I think about ways to modify the concept to make it useful for Indigenous communities seeking justice in the United States