Chapter Twelve
Lyng v. Northwest Indian Cemetery Association:
Taking the Holy Places
“For the Yurok, Karok, and Tolowa peoples, the high country
constitutes the center of the spiritual world.”
HAVE YOU EVER WALKED ON HOLY GROUND to a spot where the world was created or made your medicine in a holy place? Nowhere is the cultural divide between tribal and nontribal people so vast as the way that we look at the land. In ancient times, all of humanity revered the sacred found in the natural world. Today, many have forgotten how to listen to spiritual power that springs from the land; however, the Bible reminds us that sacred places exist. Moses’s vision on Mount Sinai comes to mind. His vision shaped the destiny of the Jewish people and transformed a desert mountain into their revelatory center of the world:
There the angel of the Lord appeared to him in a flame of a burning bush. Moses noticed that, although the bush was on fire, it was not being burnt up: so he said to himself, “I must go across to see this wonderful sight. Why does not the bush burn away?” When the Lord saw that Moses had turned aside to look, he called to him out of the bush, “Moses, Moses.” And Moses answered, “Yes, I am here.” God said, “Come no nearer, take off your sandals; the place where you are standing is holy ground.”1
In this chapter, we shall journey to the center of the spiritual world in Native North America. It is a beautiful, primordial place called the High Country. Located in the wilderness peaks and high meadows of the Siskiyou Mountains, it lies in the heart of the aboriginal homeland of several Indian tribes of northwest California—rare communities that still practice an ongoing indigenous religious system.
For centuries, tribal mystics went to the High Country for the same reason that Christian contemplatives sought out isolated places in the Middle Eastern deserts: to be alone with themselves in a sacred place and, ultimately, with God.2 In this place, some of the prehuman “beforetime” spirits departed to the heavens or turned into animals or rocks upon the coming of human beings; and this is where the souls of the great Indian doctors reside. It is possible in this place of many spirits to acquire power, fly through the hole in the sky into the heavens, catch a song, or learn esoteric knowledge. And, here is where we shall study how the laws of men and the laws of the Great Spirit intersect.
How are holy places treated by the courts of the conqueror? American law provides surprisingly little legal protection for them. In Lyng v. Northwest Indian Cemetery Association (1988), the Supreme Court declared that no First Amendment principle exists that can protect tribal worship on holy ground.3 In that case, Yurok, Karok, and Tolowa Indians asked the federal courts to protect worship in the High Country in the Six Rivers National Forest, where the nearby tribes have worshipped since time immemorial. Their religious traditions, which are aimed at the renewal of the world, depend on the immense spiritual powers found in the High Country to carry out their religion. But their ties to the High Country would be threatened by the coming of the US Forest Service. Surrounded by virgin forest and shrouded in the mountain mists, the High Country stood in the path of logging and road construction. The agency bureaucrats saw the area merely as “733 million board feet” of timber. They wanted to harvest the timber and build a road to haul it out of the wilderness.
Following an extensive trial, the lower courts forestalled the Forest Service. They found that its plan would “virtually destroy” the Indians’ religion and halted the destruction under the First Amendment.4 On review, the Supreme Court accepted that crucial finding of fact. Indeed, Justice William Brennan was appalled at the agency’s brutally insensitive conduct. He found it difficult “to imagine conduct more insensitive to religious needs than the Government’s determination to build a marginally useful road in the face of uncontradicted evidence that the road will render the practice of respondents’ religion impossible.”5 Nonetheless, the Supreme Court still ruled in favor of the agency in a 5-3 decision.
Five justices were confounded by the Indians’ claim. They could find no constitutional basis to protect their religion. Justice Sandra Day O’Connor wrote, “the Constitution simply does not provide a principle” to protect the claims.6 Writing for the majority, she declared that the First Amendment did not apply to the dire circumstances in the case where the existence of an entire religion was at stake. In her technical view, no “burden” is placed on a religious practice unless the government (1) “punishes” people for worshiping or (2) “coerces” them to violate their faith. She engaged in hair-splitting distinctions to argue that the word prohibit in the First Amendment does not mean “destruction.” As I will explain, this strained parsing harkens us back to a bare level of religious tolerance that was accorded to heretics during the Middle Ages—when nascent nations first agreed not to punish or coerce religious dissidents, and nothing more. That reading of the First Amendment falls short of the vibrant religious liberty expected by most people in modern times.
Under Lyng’s minimalist vision of religious liberty, the Forest Service can literally destroy a holy place and the associated religion of some five thousand people without “burdening” anyone’s religious practices in the eyes of the law, so long as Indians are not punished for worshiping or forced to violate their faith. Of course, it is pure fiction that a religion can be destroyed without burdening peoples’ religious practices—one of several unjust legal fictions found in federal Indian law. The remarkable legal fiction in Lyng produces a “cruelly surreal result,” according to Justice Brennan: “Government action that will virtually destroy a religion is nevertheless deemed not to ‘burden’ that religion.”7
As steward of the national forests, the US Forest Service is too often prone to political cronyism, or it becomes the hapless captive to moneyed special-interest groups. During these unfortunate periods, pork-barrel projects take precedence over stewardship in the minds of agency leaders. As a result of the 1988 decision, the agency is free to destroy and desecrate holy ground throughout the American West at will. Few nations are guilty of systematically destroying their own holy places, but some Forest Service leaders think that is the American way, and their shameful abuse of stewardship is executed with complete impunity.8 There does not appear to be an antidote, for Congress and the courts rarely hold those government agents in check.
On a deeper level, the Lyng controversy was about two vastly different ways of looking at the land. The settler state still views land in economic terms, as a resource to be exploited. This is a hangover from our rapacious colonial origins and frontier mentality; and no place is sacred in this view. In 1948, Aldo Leopold, the influential ecologist, forester, and father of wildlife management in the United States, lamented: “There is as yet no ethic dealing with man’s relation to land and to the animals and plants which grow upon it.”9 Planting seeds for that ethic, he urged us to decolonize the way we look at the land and evolve a land ethic as the social product of a mature society. He predicted that ethic will fundamentally change our role from conquerors of the land—and the animals and plants that grow on it—to members of a biotic land community:
In human history, we have learned (I hope), that the conqueror role is eventually self-defeating. Why? Because it is implicit in such a role that the conqueror knows, ex cathedra, just what makes the [land] tick, and just what and who is valuable, and what and who is worthless…It always turns out that he knows neither, and this is why his conquests eventually defeat themselves.10
Unfortunately, Leopold’s land ethic has not taken root. Even many foresters who followed Leopold’s footsteps have lost sight of his ideals in their stewardship of the public lands. To them, the natural world must be quantified only for its value to the conquerors as a natural resource. By contrast, the Native experience on the land teaches that some places are holy ground. That experience gave rise to an indigenous belief system that “holds land sacred.”11 These different worldviews are at the heart of a longstanding conflict between two disparate cultures.
Ironically, many Americans revere holy places in lands far away from North America, but they are completely unaware of the ones right under their feet at home. The late congressman Morris Udall called attention to that blind spot in 1978 and urged the nation to respect holy places in our own country.
For many tribes, the land is filled with physical sites of religious and sacred significance to them. Can we not understand that? Our religions have their Jerusalems, Mount Calvarys, Vaticans, and Meccas. We hold sacred Bethlehem, Nazareth, the Mount of Olives, and the Wailing Wall. Bloody wars have been fought because of these religious sites.12
Unfortunately, his ringing words have largely fallen upon deaf ears. Since 1978, government agencies intentionally destroy holy places, even when they know they are holy ground. To make matters worse, the other branches of the federal government knowingly condone it. Why? Because the government views the land through the eyes of the settler state, and the task of the legal system is to justify that viewpoint. The Lyng doctrine does just that: agencies destroy Native American holy places in a land that professes religious liberty. In stark contrast, Congress passes laws that strictly protect church property owned by non-Indian religious groups so that they can be protected from such unthinkable conduct.13 This doublethink leaves tribal holy places in an unprotected legal status at the mercy of the Forest Service or other like-minded agencies.
This chapter examines the Lyng doctrine. To appreciate this case, we must clearly understand the nature of holy places in world religion, and especially the role of the High Country in the religion of the Yurok, Karok, Hoopa, and Tolowa Indians who worship in the Siskiyou Mountains. Finally, we will ask: does an antidote to Lyng exist?
What Is a Holy Place?
Holy places cannot be approached safely in many authentic religions without the necessary purification, protection, and ritual preparations. Thus, before our story begins, we must prepare by reviewing the nature of holy places in world religion. Otherwise, we cannot fathom the sacred sites located in our midst.
It is stating the unremarkable to say that all world religions have holy places. From the beginning, humanity’s wisdom traditions have shared a unifying dependence, in varying degrees, upon sacred sites. Worship at special religious sites is a basic attribute of religion itself. However, when thinking of sacred sites, most Americans think only of the well-known Christian, Jewish, and Islamic holy places in the Middle East that are familiar to the Judeo-Christian tradition, such as Mount Sinai, Bethlehem, the Wailing Wall, or Mecca. None doubt that these important sites are entitled to stringent legal protection for the practitioners of those faiths. The preservation of such places is the responsibility of each nation. Indeed, the laws of Israel do just that.14
Across the world, there is a common human theme of seeking direct spiritual contact at sacred geographical points. The holy places form a rich tapestry where humans can experience direct communication from God, divine beings, or spirits. Each year, the modern world’s many places of power attract millions of pilgrims seeking enlightenment, esoteric knowledge, or spiritual communication with God in visionary forms. In the folklore of the eastern Christians, the summit of Golgotha is sacred because that is where Adam was created and buried. It is a cosmic mountain where heaven and earth meet at the center of the world.15 In Jerusalem, monks from six sects faithfully guard the Church of the Holy Sepulcher, built on the very site where Jesus was crucified. A ladder has stood near the entrance since 1852, awaiting Jesus’ prophesied return—it is a sacred space of fundamental importance for all of Christianity. Judaism’s most sacred spots are the Wailing Wall, where Hebrew blessings are whispered, and Mount Sinai, where Moses received his lifelong power to communicate with God—the revelatory center of the world where Jewish people ritually return each year. Millions pilgrimage annually to Mecca, the holiest place in all of Islam, to pray at the Kaaba. Even American tourists reverently walk in the footsteps of the prophets in the Holy Land abroad, with camera in hand.
Across the Indian Ocean, the Hindus revere the Ganges River. It is the pathway to salvation. Millions make pilgrimages to Varanasi, the holiest city in Hinduism. Whereas Buddhists seek enlightenment under the Bodhi Tree, because that is where Siddhartha sat in meditation many years ago, attained nirvana, and became the Buddha. Sikh worshipers pray toward the Golden Temple, a holy site that sits upon a sacred pool. In other parts of the world, sacred mountains, waterfalls, caves, and lakes dot the Philippines, Indonesia, Hawaii, Australia, and South America where indigenous people pray. For the primal religions of the world, which are deeply embedded in their indigenous habitats, the religious ties to place are longstanding. As Huston Smith, author of the The World’s Religions, notes, “Many historical religions are attached to places,” but no historical religion “is embedded in place to the extent that tribal religions are.”16
In short, the modern world is filled with holy places. The renowned religious historian Mircea Eliade defines the tie between visions and holy places that form the basis for many world religions as hierophany, the manifestation of the sacred.17 He notes that many religions are based upon these dramatic encounters with supernatural beings that manifest themselves in natural places, like the sky, mountains, stones, and water bodies. Hierophanies can reveal esoteric knowledge or convey broader revelations for groups of people or nations, and they often transform the ordinary places where these extraordinary events occur into a spiritual center of the world, in the religious sense, for the community involved. Thus, ordinary spots become revered as primal ground where the first or most important revelations occurred, forming sacred geography demarcated from the mundane world. At the end of the day, however, a full understanding of a sacred place is experiential. You must go there, feel the power, and be instructed in the context of the site in order to appreciate it—otherwise it is possible for one people to destroy or desecrate a place that others consider holy.
Given this widespread pattern of hierophany, can it be that America alone is bereft of holy places? Is ours a vast land where the sacred cannot be found except in man-made places, like churches, the Denver Mint, or Wall Street? “Be attentive,” say Native Americans. “Many places in the natural world are hallowed. It is impossible to confine the Great Spirit in man-made artifacts.” Recent literature documents that America is home to holy places that rival those in the Middle East.18 When Moses climbed Mount Sinai, on this side of the world Sweet Medicine ascended Bear Butte. That venerated Cheyenne prophet faced the Creator on a sacred mountain, where he received spiritual gifts and teachings, including the sacred arrows. Upon Sweet Medicine’s return, like Moses, he instructed the people in the sacred laws, covenants, prophesies, and ceremonies that shape the Cheyenne Nation to this very day. (The only difference between the two mountains is Bear Butte has no legal protection under the laws of man.)
When thinking about holy places in our corner of the world, it is necessary to begin with man’s relationship to the sky. In North America, Father Sky (Ati’as Tiirawaahat, in Pawnee) has religious significance. To many tribes, the Sky World forms a great, arched, sacred dome, within which all can live and walk with goodness that comes from the heavens. In the Pawnee origin story, the first woman and man were children of the stars. At Father Sky’s direction, these celestial beings placed them upon the earth by a whirlwind funnel cloud in the Great Plains of Nebraska. From that geographic center, the heavens extend outward in all of the sacred directions, as shown in the starry night sky.19 The vault of the heavens is full of celestial beings who influence the way things are on Mother Earth. They form one vast constellation called the Wildcat, so named after its polka-dot hide. Father Sky sits at the top, in a special place where people can direct their prayers. For this reason, the old-time Pawnees said we can be glad: anywhere you go, we are in a holy place—“Just look up” (suks riiwataa). In short, the entire American sky is one vast holy place—one “inexhaustible hierophany,” in Eliade’s words, and anything that happens there (such as lightning, thunder, or the movement of the stars) “is a moment in that hierophany.”20
Beneath Father Sky is our home, a land called Mother Earth (Atira’ Huraaru’) that is filled with holy places. One scholar organized American holy places into seven categories.21 In no particular order, the first category is religious sites associated with ancient myths from primordial times involving the creation and the way things are, or spots important in migration traditions. Rainbow Bridge is such a place. The natural sandstone bridge is formed by the union of two ancient beings who produce the rain, rainbows, clouds, and moisture that spread over the Dine’ Reservation. Out of the Grand Canyon, the Zuni people emerged at the beginning of time. The second category comprises pilgrimage routes through sacred landscapes used by Native people for millennia. The route to Zuni Heaven, where all Zuni go after death, is one such pilgrimage route. The Karok follow a sacred route in order to conduct their World Renewal ceremonies on the banks of the Klamath River. And then there is the mysterious Golden Stairs leading to the High Country in the Siskiyou Mountains, which goes all the way to heaven, as I will discuss later. The third category covers gathering places for especially sacred plants, materials, and minerals. The Peyote Gardens in Texas, the pipestone quarry in Minnesota, and a certain cave in Colorado where all colors of the sacred Ute paints can be found, are examples. Artifacts, like shrines, altars, cairns, and ancient ruins, form the fourth category. This includes places like the Bighorn Medicine Wheel (our corollary to Stonehenge) and the Pueblo shrines that dot New Mexico. Another category consists of burial grounds and massacre sites that are revered in much the same way as the Gettysburg battlefield and Arlington National Cemetery are considered consecrated sacred ground by the American public. Sixth are vision-questing sites, where Native people go to communicate directly with the spirit world, just like Moses and Sweet Medicine did in times past.
And finally, there are the great American sacred centers where many spirits and divine beings live. These are often mountain summits located at the spiritual center of the world for the surrounding tribes where heaven and earth meet, or other prominent natural places on the landscape. These are special places of profound power that combine many of the qualities from the other categories all in one. A partial list of the holy places in this category, published in existing literature, includes: The Four Direction Mountains that surround the Dine’ Nation located in Colorado, New Mexico, and Arizona; Bear Lodge (Wyoming), the sacred place of twenty Plains Indian tribes; Pahuk (Nebraska), the home of Pawnee animal spirits; Bear Butte (South Dakota), where Crazy Horse and Sweet Medicine received their visions and many Indians today still do; Mount Graham (Arizona), the home of Apache mountain spirits; San Francisco Peaks (Arizona), the religious center of the world for all of the southwestern tribes; Mount Shasta (California), the home of supernatural beings and a way station for Indian souls on their way to the Milky Way; Kootenai Falls (Montana), a powerful waterfall vision-questing site and home of primal spirits of the Kootenai Nation; Blue Lake (New Mexico), where the Taos people emerged and founded their pueblo around ad 1300; Sweet Grass Hills (Montana), a living entity and holy place of the Blackfeet; Badger-Two Medicine (Montana), the vision-quest and ceremonial center of the Blackfeet Nation; among others too numerous to name. These places form the center of the world for tribes who practice human religiousness in its earliest mode in America.
In short, our nation is home to numerous Native American holy places. The government is well aware of that fact. In 1979, the secretary of the interior submitted a report to Congress following a one-year study of traditional Native American religions. The report found:
The Native peoples of this country believe that certain areas of land are holy. These lands may be sacred, for example, because they contain specific natural products, because they are the dwelling place or embodiment of spiritual beings, because they surround or contain burial grounds or because they are sites conducive to communicating with spiritual beings. There are specific religious beliefs regarding each sacred site which form the basis for religious laws governing the site.22
The High Country in Lyng is one of those places. It is the destination of our case study, and we go there now.
The Land of the Yurok, Who Live at the Base of the High Country
I want to take you to a place of immense beauty—a pristine region so teeming with life that it overpowers the imagination. It’s right here in the United States. In March of 2008, I went on a remarkable journey, traveling the entire length of the Klamath River. It started in the Oregon headwaters on the banks of the Williamson River, near Crater Lake and Klamath Marsh, the ancient Klamath Indian settlement.23 The trip entailed about three hundred miles, descending downstream through breathtaking country and several Indian reservations to the mouth of the Klamath, where it empties into the Pacific Ocean on the Yurok Indian Reservation at Requa, California.
My purpose was to visit the land and people involved in the Lyng litigation. The Native American Rights Fund (NARF) had filed a Supreme Court amicus brief to support their cause in 1987, and we attended the oral argument in Washington, DC, to watch Marilyn Miles, a Kickapoo, of California Indian Legal Services argue the case. (She was the second Native American to argue a case before the Supreme Court.)24 Even though I have litigated water rights for many years in the headwaters of the river for the Klamath Tribes in Oregon, I never spent much time in the lower reaches of California, where the case arose. I would journey into the land of the Yuroks as a guest of Amy Bowers, a NARF attorney and tribal member, and her family. After meeting up near the scenic Klamath River Highway, we would go to Requa, then boat upriver to the confluence of Blue Creek, which originates in the High Country and empties into the Klamath River.
The river begins to run swiftly along the Klamath River Highway, and our entrance into the narrows was welcomed by hunting eagles flying overhead. Sparsely populated, this beautiful valley is hidden in the Klamath Mountains. It is one of America’s best-kept secrets—a land that time forgot. Along the way, we spent the night on the Hoopa Valley Indian Reservation at the home of Amy’s relations—Susan and Leonard Mastens. Susan is a former president of the National Congress of American Indians and was previously a chairwoman of the Yurok Tribe; Leonard is currently vice-chair of the Hoopa Tribe. Their home in Hoopa sits on the banks of the Klamath, and we feasted that night upon freshly caught steelhead trout. It rained hard during our visit. The next morning, fresh snow lay in the passes. We descended into the coastal rain forest, where the massive redwood trees grow as tall as 379 feet and live to be two thousand years old. They are the longest-living organisms on earth. To Yuroks, the redwood beings are guardians of the sacred places.
Shortly, we arrived at the Yurok Reservation. It fronts the Pacific Ocean and straddles the Klamath River for forty-four miles upstream, extending a mile on either side of the waterway. It is a coastal but distinctly riparian reservation that winds its way into the Siskiyou Mountains. The Yuroks have occupied the valley for millennia, because it is located within their ancestral territory. Numerous historic and prehistoric villages dot the area. Since the beginning, they have been Salmon People. Each year, major runs of coho, chinook, and steelhead stream into reservation waters, where the sea lions, eagles, and Yurok compete for the catch. Their stewardship of this well-endowed land is strongly evident in the largely undisturbed landscape, clear waters, and teeming populations of fish, birds, and animals of all kinds. These attributes make this reservation one of the last best places in the Pacific Northwest. Where others have despoiled their communities in the span of a few short decades, Yurok Country remains largely unsullied after thousands of years of continuous human habitation.
How is this so? That remarkable feat is no doubt a product of Yurok religion, which fosters a clear land ethic—the hallmark of tribal communities living in their indigenous habitats. The five thousand tribal members carry on an indigenous religious system with numerous ceremonies, such as the First Salmon Ceremony, Doctor Dance, White Deerskin Dance, Jump Dance, Brush Dance, Kick Dance, Boat Dance, and Flower Dance. Some are for healing. Others are World Renewal ceremonies, held to maintain good relations with all of the relatives in the natural world, to protect the earth from catastrophe and maintain the stability of the world, and to pray for the well-being of the land itself. World renewal theology is a feature of primal religion found only rarely in the religious outlook or land stewardship ideals in the modern world. “For the religious man of the archaic cultures,” Eliade writes, “the world is renewed annually; in other words, with each new year it recovers its original sanctity, the sanctity that it possessed when it came from the Creator’s hands.”25 Stewardship takes on an entirely deeper meaning among tribes that carry on World Renewal ceremonies.
Only those deeply embedded in the land can fathom such a theology—that is “embeddedness,” in the words of Smith, to the extent that “order reverses itself and we begin to think, not of primal peoples as embedded in nature, but of nature…extending itself to enter deeply into them, infusing them in order to be fathomed by them.”26 The world renewal outlook in primal religion transcends our lineal conception of time and history, which starts from the time of creation and runs to the end of the world. By contrast, in Yurok time, the community has the freedom to begin the world anew each year and take part in nature’s “eternal return.”27 Yurok ceremonies help the world recover all of its powers intact. This primordial stewardship ethos is an archaic treasure from the past that few can fathom today.28 In this religious worldview, nature recovers with the help of humans, who take part in creation. The Yurok and neighboring tribes along the Klamath River are an exceptionally spiritual people. They reach for the spiritual side of the natural world. Like salmon, they navigate waters that most people can only glimpse. The Yurok way is tied to the High Country, deep in the Siskiyou Mountains.
Two Yurok fishery technicians from the tribal fishery department met us at the dock, Scott Gibson and Steve Nova. We were to motorboat to Blue Creek. Circling out into the bay, where sea lions gathered on the delta by the sea, we made our turn and headed inland, bouncing lightly over the current. (As the only landlubber in the group, I gripped the rails tightly, secure in my life vest and cowboy hat, with braids flying in the wind!) Accompanied by the ever-present eagles, we left the sunny beach behind and swiftly made our way upstream, navigating the misty mountain reaches through the lush streamside reservation landscape, largely unsullied by the hand of man. It was like traveling back in time to a place where the world is young.
At last, we reached our destination. Blue Creek is an azure stream. It originates in the High Country and plummets nearly five thousand feet through old-growth forest to empty into the Klamath at the foot of the mountains. If you snorkel the cool, crystal-clear waters of this incredible stream, you will see large groups of salmon lying in the deep holes.29 Eagles line the lush banks where abundant wildlife resides. The pristine creek is simply “doing what it is supposed to do,” according to Scott. As we bobbed in the water, the Yuroks gazed reverently toward the blue stream and offered their prayer, for ahead lay a pilgrimage trail into the High Country, the mysterious Golden Stairs…
The High Country, the Spiritual Center of the World in Yurok Religion
One does not lightly enter the High Country, for the immense power that abides there can be dangerous for the unprepared. Based on evidence presented in the Lyng trial, when medicine people prepare for the World Renewal ceremonies, first they must fast, cleanse, and purify themselves and observe certain taboos so the dances will not fail.30 Purification cleanses the mind and rids bad thoughts so one can become holy. Power can only be acquired if the spirits recognize your sincerity.31 Once purified, a medicine person ascends into the High Country to pray and obtain power.
There are several pilgrimage routes used by the nearby tribes. The seeker approaches the High Country in a sacred manner by walking these trails, or running; each step is important because “every step of the way you learn something.”32 The quest is done for the entire community that depends upon the powers received in the High Country for the success of the ceremonies held in the river valley below. The particular trail near Blue Creek is called the Golden Stairs, a pathway followed by Yurok doctors. Like us, doctors from downriver places go by boat to Blue Creek, then follow the stream to the Golden Stairs, where they ascend into the High Country. One Yurok elder said, “One sees where it starts, but not where it is ended,” because the trail is a corridor between heaven and earth that leads all the way to heaven; and nobody has ever got to the end of it.33
Once in the High Country, one enters into a remarkable haven of wilderness and natural beauty—meadows, valleys, and a pristine old-growth forest where towering Douglas firs grow over three hundred feet tall. Several outcroppings on Medicine Mountain, such as Chimney Rock and Doctor Rock, are special places where seekers can contact the Spirit World. Rhythm sticks help induce a trancelike mental state to be receptive to the spirits, until, at last, direct contact is made! One place along the ridge, known as Peak 8, is at the heart of the spiritual world for the Indians of northern California. This mysterious peak at the crest of the mountain has the most powerful medicine in the area. Only a few people (one person in each generation) possess sufficient power to use Peak 8 safely, for there one can achieve contact with the cosmic universe. Peak 8 “is located below the ‘hole in the sky’ and…an individual could fly through the hole in the sky and into the heavens.”34 Knowledge obtained there is esoteric and restricted, but medicine people using the peak are “in extreme danger and can be easily hurt.”35
During the mythic age, the prehuman beforetime spirit people lived in the lowland. They gave early humans all things necessary for life. Later, these spirits retreated to the High Country, where many continue to reside, while others departed to the heavens from one of the mountain meadows. Those spirits, together with the souls of Indian doctors who also reside in the High Country, help the living to make medicine there. The Indians undergo the arduous journey to pray for the renewal of the world and for the whole human race. Since time immemorial, the spiritual well-being of the tribes has depended upon the success of these quests to the High Country.
The High Country lies in the Six Rivers National Forest (SRNF). In 1976, during the Gerald Ford administration, the Forest Service determined to build a logging road right through the middle of this area so that 733 million board feet of timber could be harvested, primarily through clear-cutting.36 Since 1930, some logging roads had already been built into sections of the SRNF, but the High Country in the center of the national forest remained a roadless wilderness. By 1982, all that remained to connect the roads, access new timber, and haul logs to mills at either end of the forest was a six-mile section through the High Country.
The agency clearly understood the religious importance of the area. It had commissioned an independent study to provide definitive information on the Indian cultural and religious sites in the vicinity. The study, which was completed in 1979, documented all of the aforementioned facts from 166 tribal informants. It concluded that the proposed development would have devastating impacts on the High Country and the attributes that made it a sacred place. The study “found that the entire area ‘is significant as an integral and indispensable part of Indian religious conceptualization and practice.’”37 It pointed out that “[s]pecific sites are used for certain rituals, and ‘successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.”38 For these reasons, the study recommended against the project and concluded that it “would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples.”39
Imagine the outcry if the government destroyed your place of worship. It would be intolerable for our government to cause “serious and irreparable damage” to sacred sites integral to the belief system of the Christian churches—and unthinkable. Nonetheless, despite this information, the agency adamantly rejected the recommendation of its own study. The regional bureaucrats decided the road was more important for developing “timber and recreation resources and to the economies of Del Norte and Humboldt Counties.”40 Following various appeals, R. Max Peterson, chief of the Forest Service, affirmed the decision and ordered implementation of the plan.41 He wrote, the Indians “have not shown a compelling reason to forego the benefits that will accrue to the general public from completion of the road as planned,” adding that the “Constitution prohibits the government from giving preferential treatment to any religion.”42 Peterson’s decision was made during the heyday of clear-cutting the national forests in the 1980s, when government “stewardship” stockpiled forest resources only until it became politically expedient to exploit them. Individuals always act for an institution. Those responsible for the agency decisions in Lyng disserved the tribes and brought about a lawsuit in the courts of the conquerors.
The Trial: Indians Go to Court to Protect Worship on Holy Ground
As road construction drew near in the summer of 1982, the Indians filed a lawsuit in federal district court in San Francisco to halt the destruction of the High Country. The Indian plaintiffs were tribal elders Jimmie Jones, Sam Jones, Lowana Brantner, and a young man named Christopher H. Peters, together with the Northwest Indian Cemetery Protective Association, composed of sixty-five Tolowa, Yurok, Karok, and Hupa. They were joined by various environmental groups, and the State of California filed a separate complaint to oppose the Forest Service plan by and through two state agencies, the Resource Agency and Native American Heritage Commission. Among other things, the two consolidated cases asserted that the project would impermissibly destroy the religious area and infringe upon the Indians’ ability to practice their religion, in violation of the First Amendment to the US Constitution. Together, the plaintiffs sought to protect Native worship on holy ground under the First Amendment in the courts of the conqueror.
The case was assigned to the late Judge Stanley A. Weigel (1907–1999), one of the most famous federal district court judges of his day. Weigel was appointed to the bench in 1962 by President John F. Kennedy and had reached senior status by the time the case came to him. According to the press, he was considered “a tough judge with a short fuse, but he was also known for his independence and his courage to render decisions regardless of their popularity.”43 To many unfortunate lawyers, the San Francisco judge “was renowned for being a great curmudgeon and being particularly tough on attorneys,” but he had a reputation for “being a fair jurist.”44 Representing the Indians was a young Native staff attorney of the California Indian Legal Services (CILS), Marilyn B. Miles (who is now a distinguished judge on the California Superior Court). This case was her first major federal court litigation, just two years out of University of California at Davis School of Law, and it would take her all the way to the highest court in the land.
Judge Weigel denied the plaintiffs’ motion for a temporary restraining order (TRO) to halt the project, but scheduled an expedited evidentiary trial on the merits, giving the attorneys just six weeks to prepare. The first day of trial in the packed courtroom was rough sledding for Miles. Her opening statement was repeatedly interrupted and criticized by Judge Weigel, and, worse yet, he threatened to exclude crucial evidence—every young attorney’s worst nightmare!45 But the tide began to change on the second day, when Judge Weigel admitted crucial evidence from the administrative record and Miles’s Indian witnesses began to tell their stories in their own words.
The lead witness was the youthful Chris Peters, the grandson of one of the Indian doctors.46 The long-haired Indian man presented a slide presentation in open court as plaintiffs’ Exhibit 1 to allow the judge to visualize the pristine beauty of the holy places. He began his testimony in the San Francisco courtroom:
The Yurok, Karok and Tolowa Indian Tribes live in the northwestern corner of California. These tribes share the use of a very special religious area. That area is located in the southern portion of the Siskiyou Mountains, and referred to by the Indian people as the “high country.” Doctor Rock, Chimney Rock, Peak 8 and Little Medicine Mountain are located within this religious area and are some of the more sacred places within the high country. They have been used throughout the years by Indian people who go there to pray for special purposes [or] special powers, or medicine. The high country was placed there by the creator as a place where Indian people could seek religious power…This area is our church: cannot be moved or disturbed in any way.47
The young man testified that “any adverse changes in the high country will have a direct impact on the practice of our religious beliefs” and this holy place is not only “essential to our religious beliefs,” but is “the very core of our cultural identity.”48 One by one, the tribal witnesses shared their profound religious experiences in the High Country with Judge Weigel and explained how the development would destroy the religious efficacy of that place. One witness explained:
That area belongs to a spiritual world that was put there by a creator or a spirit for Indian people to use. It is the core, it is the very center of our cultural identity. It is where we get the power that makes our religious ceremonies significant. Where we get personal power that reaffirms our Indianess and our way of life. To disrupt it and to destroy it, as the Forest Service is proposing to do, would definitely have an impact on the regeneration of Indian people. Currently it would totally destroy any hope of our grandchildren from knowing what that area has for them.49
Another elder testified about the project’s destructive impact on the holy place.
The high country is like our church. In building a road through our church would really be destructive in my frame of mind…[The Indians] have to pray. When the medicine [women] go out there to pray, they stand on these rocks. They call them Doctor Rock and Chimney Rock and they meditate. I mean the forest is there looking out. They talk to the trees and rocks, whatever is out there. Our people talk in their language to them and if it’s all logged off and all bald there, they can’t meditate at all. They have nothing to talk to and after they get through praying, their answer comes from the mountain. The medicine lady that goes there or man will see a light or a phantom or whatever they see and then their prayers are answered.50
The eloquent witnesses testified from the heart. Their stories had a powerful impact on Judge Weigel, who began to connect with the elders. “With each new witness,” according to observers, “slowly but surely, Judge Weigel was starting to grasp the significance of the Sacred High County.”51 Having set the stage, Miles then played her ace card. The last witness was a grand medicine woman, Lowana Brantner, who clearly entranced Judge Weigel. Before the packed courtroom, she asked him to close his eyes and accompany her to the High Country. What happened next is a remarkable moment in the modern era of federal Indian law.
The room was deathly still as Judge Weigel and Lowana Brantner embarked on their journey. As the clock ticked on and seconds became minutes, the silence deepened even further and the only sound was the occasional muted cough. Finally, Lowana opened her eyes and commanded Judge Weigel to return. She turned to him and said, “Now do you know what we mean?” His response was simply, “Yes, I do.”52
For all intents and purposes, the case was won. The courtroom erupted into applause, cheers, crying, and laughter as the judge turned to the defendants and secured their promise not to construct the road until he issued his decision. “Judge Wiegel, a most careful preserver of decorum, let the celebration go on for some time as he and Lowana smiled at each other,” according to observers. “Those of us who were there that day will never forget it.”53
Looking back today on this moving experience in her first major case, Judge Miles attributes the successful outcome in the district court to the power of the elders: “I have always believed that it was because we focused on the spiritual, religious, the power of the places and the people, that this particular case played out as it did.”54 Paying tribute to her clients, Judge Miles stated, “Knowing it was my first case, they were so gracious and confident with our goal for the trial: to allow elders to tell their story and to warn those who did not know or understand the harm that comes from destroying sacred and powerful areas.”55 Her strategy (which was to find a tough, but fair-minded judge, then let the elders and medicine people tell their stories) was a winning formula followed in the great trials during the modern era of federal Indian law that produced a remarkable track record.56
The Lower Courts Protected Indian Worship in the High Country
Judge Weigel handed down a landmark decision in 1983. The opinion begins by noting that the “unorthodox character” of the tribal religious beliefs is no basis for denying constitutional protection.57 The district court found that the High Country is “considered sacred by members of the Yurok, Karok, and Tolowa Indian tribes.”58 Judge Weigel summarized the undisputed evidence established at the trial:
Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century…and probably much earlier…Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator” (Tr. at 79). Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies, such as the White Deerskin and Jump Dances must visit the high country to purify themselves and make “preparatory medicine.” The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire community. Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines. They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush Dance and Kick Dances.59
Based on the evidence, Judge Weigel determined that “for generations” the tribes “have traveled to the high country to communicate with the ‘great creator,’ to perform rituals, and to prepare for specific religious and medicinal ceremonies,” which uses are “central and indispensable” to their religion.60 He concluded:
For the Yurok, Karok, and Tolowa peoples, the high country constitutes the center of the spiritual world. No other geographical areas or sites hold equivalent religious significance for these tribes. Further, use of the high country is essential to performing the “World Renewal” ceremonies, such as the White Deerskin and Jump Dances, which constitute the heart of the Northwest Indian religious belief system. Finally, use of the high country in training young persons in the tribes in traditional religious beliefs and ceremonies is necessary to preserve such practices and to convey them to future generations. Degradation of the high country and impairment of such training would carry “a very real threat of undermining the [tribal] communities and religious practice[s] as they exist today.”61
The court found that Forest Service logging and road construction would place a burden upon the Indians’ religious practices by violating the sacred qualities of the High Country and impairing its religious uses by the tribes in several respects. First, the road would destroy pristine conditions in the roadless wilderness area that are essential for its religious use. Second, noise from logging and traffic would impair the vision quests. (Even Moses could acquire no vision under those circumstances.) Third, environmental degradation from the road would erode the religious significance of the area. (Similarly, if the Israeli government built a road through the Church of the Holy Sepulcher, it would erode the religious significance of the site where Jesus was crucified.) Finally, the religious use of the area would be impaired by increased recreational use resulting from the new road (just like tourists could interfere with Muslim prayers at the Kaaba if allowed to picnic and play touch football in that holy place during times of prayer). Accordingly, the court ruled that the road construction and logging would “seriously damage” the qualities of the High Country necessary for tribal worship and were “potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.”62
Finally, Judge Weigel proceeded to apply the compelling-government-interest legal test to see whether the Forest Service’s logging and road interests were of sufficient magnitude to override the burden that the project would place upon tribal religious practices. He found that those interests were marginal at best and speculative. The road would provide no net increase in jobs, no material increase in timber harvest, and only speculative improvements in forest administration, and any recreational benefits were cancelled by resulting environmental degradation.63 Thus, under the constitutional test, the Forest Service action would unlawfully burden the Indians’ freedom of religion protected by the Free Exercise Clause of the First Amendment to the US Constitution. Judge Weigel therefore enjoined the construction of the road and the plan to log the area. In so doing, he also rejected the Forest Service’s argument that this relief would create a “government-managed ‘religious shrine’ in violation of the Establishment Clause of the First Amendment.”64
In 1986, Judge Weigel’s decision was affirmed by the Ninth Circuit Court of Appeals in a 2-1 decision written by Circuit Judge William C. Canby Jr., who is himself a distinguished scholar in federal Indian law.65 While the case was on appeal, Congress enacted the California Wilderness Act (1984), which placed most of the area into protected wilderness status, leaving open only a twelve-hundred-foot corridor for the completion of the G-O road.66 The act reduced the issue of logging, “although it does not disappear,” and Congress did not take a position on whether the road should be completed, but left that dispute to the courts.67 The court of appeals agreed with Judge Weigel that the proposed project would impermissibly interfere with the Indians’ free exercise of religion rights for two reasons. First, the High Country was a religious place of central importance to the tribes:
There is a great deal of evidence in the record that the high country is indispensable to a significant number of Indian healers and religious leaders as a place where they receive the “power” that permits them to fill the religious roles that are central to the traditional religions. There is abundant evidence that the unitary pristine nature of the high country is essential to this religious use. Finally, there is much evidence that the religious lives of many other Indians depends upon the services of those leaders who have received the necessary “power” in the high country. On all of these points, there is virtually no evidence to the contrary.68
Second, evidence admitted at the trial “amply supports, indeed virtually compels, the conclusion that logging and the construction of logging roads would be utterly inconsistent with the Indians’ religious practices.”69 The court of appeals concluded that the project would “virtually destroy” the Indians’ ability to practice their religion.70 The court rejected the Forest Service’s argument that there is no burden upon religion unless the government actually penalizes religious practices. That argument was based upon a holding in an earlier Indian religion case, Bowen v. Roy (1986), which held that a government social security number assigned to an Indian child for purposes of providing government benefits does not burden any religious practices, because the parents were merely attacking a purely internal government operation that offended their religious sensibilities.71 By contrast, the Lyng Court distinguished Roy since the plaintiffs had proved that logging and road construction would “virtually destroy” their ability to practice their religion and, in addition, “logging and road-building on public lands, to which the public has access, is not the kind of internal governmental practice that the Court found beyond free exercise attack in Roy.”72
With a landmark victory firmly in hand, the Indians readied for the ultimate test of their claims, because their cause was now poised to go the Supreme Court. The hard-fought victory in the lower courts would soon be reversed by the Supreme Court in one of the worst Indian cases ever decided.
The Supreme Court Denies Protection for Worship in the High Country
The fate of tribal worship in the High Country would be determined by the Rehnquist Court. As I discussed in the previous chapter, during the late 1980s, that Court was preoccupied with restricting twentieth-century notions of American religious liberty established by the Stone, Vinson, Warren, and Burger Courts. That expansive vision of religious liberty in a constitutional democracy came to an abrupt end shortly after President Reagan appointed three new justices during the 1980s—Sandra Day O’Connor, Antonin G. Scalia, and Anthony M. Kennedy. To lead this conservative cohort, Reagan promoted William H. Rehnquist to succeed Warren Berger as the chief justice in 1986. Thus, the Lyng case came before the most archconservative Supreme Court in the twentieth century. As a newly constituted majority, the conservative axis of the Court was eager to flex its muscle and make its mark on American society.
Given the strong evidentiary record established at trial by Marilyn Miles and the findings of fact made in the lower courts, it would be difficult for the Rehnquist Court to rule against the Indians under existing law without doing some mighty fancy footwork, and that is exactly what the majority did in a 5-3 decision. The majority opinion was written by Justice O’Connor. As I will explain, the infamous decision turned on a couple of unjust legal fictions bolstered by judicial sophistry and hair-splitting distinctions of the highest order.
First, the majority ruled that federal land management of public lands cannot burden anyone’s religious practices as a matter of law. O’Connor reasoned that land management is purely an internal government affair that, by its very nature, can have no more impact upon anyone’s religious practices than the color of government filing cabinets.73 She supported this irrational presumption of fact by expanding the holding in Bowen v. Roy (that purely internal government operations cannot by their very nature burden religious practices) to control much different facts in the Lyng case.74 While the facts in Roy obviously warranted such a holding since that case involved an internal agency office’s computerized numbering system and it is hard to see how that function can possibly affect any religious practice, O’Connor failed to see any difference between the two cases. She concluded: “The building of a road or the harvesting of timber on publically owned land cannot meaningfully be distinguished from the use of a Social Security number in Roy.”75 Her failure to distinguish the different factual situation in Roy from the facts in Lyng is disingenuous; but that sophistry effectively placed Indian worship on federal lands outside the purview of cognizable First Amendment claims.
In his dissenting opinion, Justice Brennan found O’Connor’s professed “inability to differentiate Roy from the present case” to be “altogether remarkable.”76 The fallacy of applying Roy to the facts at hand was readily apparent to him: the social security numbering system used in government computer systems at issue in Roy was clearly an internal matter—just like the color of office filing cabinets, that internal governmental administrative matter was highly unlikely to affect anyone’s religious practices. By contrast, federal land-use decisions “have substantial external effects that government decisions concerning office furniture” do not have.77 Because land-use decisions can actually, in fact, place a burden upon religious practices as demonstrated by the evidence, Brennan persuasively argued that the application of Roy is “wholly untenable”; and it produces the “cruelly surreal result” that “government action that will virtually destroy a religion is nevertheless deemed not to ‘burden’ that religion.”78 In short, the majority’s assumption that federal land-use actions are merely internal government matters that cannot affect religious practices is an unwarranted legal fiction. Brennan pointed out the fallacy of that fiction:
The land-use decision challenged here will restrain respondents from practicing their religion as surely and as completely as any of the governmental actions we have struck down in the past, and the Court’s efforts simply to define away respondents’ injury as nonconstitutional are both unjustified and ultimately unpersuasive.79
Second, the sharply divided court enunciated a hard and fast rule that so severely restricted the reach of the First Amendment to such rare circumstances that little room for constitutional protection against government actions that infringe upon religious liberty remains. It declared that no burden is placed upon religious practices unless the government also punishes a person for practicing religion or forces one to violate his religion. Only those narrow circumstances trigger First Amendment protections. Under this restrictive vision of religious liberty, government can destroy an entire religion with constitutional impunity, so long as it does not go further and punish anyone in the process nor coerce practitioners to violate their religious tenets. Under that crabbed standard, it did not matter that the Forest Service project will “virtually destroy the Indians’ ability to practice their religion,” because the agency is not punishing Indians for practicing their religion, nor forcing them to violate any of their beliefs.80 O’Connor wrote:
Even if we assume that we should accept the Ninth Circuit’s prediction, according to which the G-O Road will “virtually destroy the Indians’ ability to practice their religion,” 795 F.2d at 693 (opinion below), the Constitution simply does not provide a principle that could justify upholding [the Indians’] claim.81
Of course, it is a legal fiction that an entire religion can be destroyed without placing a burden upon religious practices. The Court reached this harsh result by construing the First Amendment in the narrowest terms possible. Splitting hairs, O’Connor distinguished the word prohibit, as used in the Free Exercise Clause, from destroy and under her narrow parsing of the term any government action that places indirect coercion or penalties upon the free exercise of religion and makes it more difficult to practice religion is not covered by that term.82 Under this fine distinction, it was perfectly legal to log the High Country and build a road through the holy places even though that activity would “have devastating effects on traditional Indian religious practices.”83 While the constitution itself draws no fine distinctions between the types of restraints on religious exercise, that’s just the way it goes in the courts of the conqueror when it comes to protecting worship on holy ground.
The fancy footwork in Lyng was driven by the Court’s apprehension that recognizing the Indians’ religion claim might someday bring civilization to its knees. Justice O’Connor sought to forestall an imaginary parade of horribles. If the Forest Service had to accommodate tribal worship in the High Country, she worried that crafty Indians might someday parlay that protection into a “veto over public programs” or in the future “seek to exclude all human activity but their own from sacred areas of the public lands.” Or, worse yet, she feared that Indian entrepreneurs might somehow acquire “de facto beneficial ownership of some rather spacious tracts of public property” (just like ranchers, miners, and ski resort owners who use vast amounts of public lands) and bring about a “diminution of the Government’s property rights, and the concomitant subsidy of Indian religion”—and in her worst nightmare, these subversive horribles could even “divest the Government of its right to use what is, after all, its land.”84 These unsubstantiated fears of barbarians at the gate motivated a ruling that would above all safeguard the government against these apprehensions, no matter how remote. This paranoid mind-set sees Indian religious practitioners much like the early European rulers saw religious heretics in their midst—as traitors to the state; and it would be unthinkable to extend a significant measure of religious liberty to Indians under these circumstances. It is a far better judicial policy to sacrifice those ideals and nip these fears in the bud than to subject the state to the alarming hardships imagined by the Rehnquist Court.
Lyng’s Far-Reaching Impacts Left Indelible Marks on American Society
After Lyng, no constitutional principle exists to protect Native worship on holy ground located on public land. These holy places are preexisting ancient sites deemed sacred by indigenous peoples many centuries before they came into federal ownership. Though each nation is responsible for protecting holy places located within its borders, the Lyng ruling leaves American holy places at the complete mercy of the federal government and lets agencies destroy them with constitutional impunity. Under this loophole in religious freedom, there is no enforceable legal protection for this universal form of worship at holy places in the American legal system.85
Native American efforts to secure legislative protection for tribal worship at American holy places have been steadfastly opposed by the federal government since 1988. Instead, Congress created a double standard for statutory protection of holy places in the United States in 2000. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)
protects the religious use of church property only if the claimant “has an ownership, leasehold, easement, servitude, or other property interest in the regulated land.”86 While the RLUIPA standards help to ensure that no church, synagogue, mosque, cathedral, Sunday school, church school, camp, or parking lot will be bulldozed, the property ownership requirements of that law operate to exclude all indigenous holy places that are no longer owned by Native people dispossessed by the conquest and settlement of the frontier. This oversight not only gives rise to second-class treatment of Native American holy places, but this markedly disparate statutory treatment may run afoul of the Equal Protection and Establishment Clauses of the Constitution by impermissibly fostering and favoring one category of religious places while excluding another category. As a result, indigenous religious sites have been bulldozed, flooded, paved over, clear-cut, commercialized, and desecrated by agencies and tourists, and shelled by the military. In 1995, forty-four sites were threatened by development, tourism, resource exploitation, looting, and vandalism.87 Such an onslaught would shock and outrage the nation if committed against church or government-owned religious property.
In contrast to the stringent RLUIPA protections for other religious property, the only protection afforded to Native American holy places is an unenforceable “policy” promulgated by President Bill Clinton encouraging federal agencies to accommodate tribal worship at holy places on federal land and to avoid harming those places “to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions.”88 This policy has not prevented the Forest Service from desecrating important tribal holy places, as most recently seen in Navajo Nation v. US Forest Service (2008), in which the agency is proposing to pour fecal matter on a tribal holy place in order to make artificial snow from recycled sewer water in order to subsidize a privately owned ski resort.89
There obviously remains a pressing need for law reform to protect Native worship on holy ground in the United States. Relief can be provided by a new federal law. Alternatively, advocates must develop a sound constitutional theory rooted in the Free Exercise Clause, which can only be accomplished by overturning Lyng. Otherwise, advocates must look elsewhere in the Constitution for a new source of protection for the last remaining tribal cultures that are dependent upon worship at holy places.
As suggested by the Indian religion cases of Bowen, Lyng, and Smith, it may well be that the First Amendment does not and was never intended to include religious freedom for American Indians. Our legal and religious history seems to bear this conclusion out. When the framers drafted the Constitution, Indians were not citizens and few were subject to US law. The framers recognized that Indians were members of distinct political sovereigns and treated the Indian tribes as such in that organic document.90 Perhaps the time has come to discard the notion that the framers intended to include tribal religion in the Bill of Rights, since most of them would not recognize those religions as anything other than rank superstition. As I will discuss in chapter fifteen, we can look elsewhere in the Constitution to find a more reliable basis for protecting tribal religions. The government has ample constitutional authority to protect holy places and accommodate Native worship on public lands when it wants to.91 Yet, the survival of those places cannot depend solely upon voluntary government accommodation. Instead, the protectorate relationship assumed by the US government under the Worcester doctrine ought to require the government to protect those places as the guardian of domestic dependent Indian nations.92 Because the culture, religion, and very identity of Indian tribes is often dependent upon worship at tribal holy places—as seen in the Yurok World Renewal Religion—the protectorate principle of federal Indian law should impose an affirmative and enforceable obligation to protect those places from harm, as an integral part of the trust responsibility necessary to the well-being of the domestic dependent Indian nations. Failing that, Congress should enact a new federal statute for that purpose.
Without legal protection, the last remaining sacred places left in the natural world will continue to be destroyed by the government until the land has been wiped clean of its spiritual dimension, leaving our people with a sterile landscape where the Great Spirit can be found only in the concrete and steel structures built by man. Why should we care whether an antidote to such a future exists? At first blush, the infamous Lyng case places a yoke only upon Native American communities since they alone hold religious ties to holy ground in the natural world. The attitude of many mainstream religious groups is: we have protection for our religions; let the Indians fend for themselves—it’s every man for himself. Yet the Lyng mentality affects everyone in several important ways. As I will discuss, Lyng contributed to the frightening slide to Employment Division v. Smith (1990) and the resulting demise of the First Amendment. Despite that upheaval, Lyng remains the law of the land—it has never been rooted out of the law like Smith, which was soundly repudiated by Congress in fairly short order. On a metaphysical level, Lyng impedes our search for the spiritual side of Mother Earth. Environmentally, it bars the pathway for developing a meaningful land ethic needed by our nation. Socially, it stymies social evolution from a settler state.
The Lyng doctrine has never been reversed by the Supreme Court nor repealed by Congress. Aside from the devastating impact upon Indian tribes and Native Hawaiian communities, the doctrine has inflicted two deleterious impacts on general American religious liberty that should not be tolerated.
First, the weakening of religious liberty in Lyng led directly to the slide toward the infamous Smith decision in 1990 that precipitated the outbreak of an unprecedented religion crisis in the 1990s.93 Smith was soundly repudiated by several acts of Congress, but Lyng still lies in the weeds as a blemish on the same ideals that exhorted Congress to repudiate Smith. Legal advocates should seek to overturn the Lyng doctrine, like the opponents of racial segregation who toiled to overturn the noxious separate-but-equal doctrine that perpetrated injustice for so many for so long.
Second, by drastically curtailing the scope of the First Amendment, the Lyng doctrine has fundamentally altered the nature of American society. We now have less constitutional protection for religious liberty than most other democracies. It should deeply concern us all that the minimalist vision of religious liberty emanating from Lyng is one of bare toleration of religion in a secular society. The rule allowing religious freedom to exist in our diverse society as a protected liberty only to the extent that one is not punished or coerced, and no more, is a medieval principle that is sorely out of step with the needs and ideals of twenty-first-century America.
That crabbed principle is also at odds with the intent of the framers of the Constitution. It must be remembered that when the Founding Fathers wrote the First Amendment, they sought to enshrine freedom of worship as a foundational principle of the Republic and to radically depart from the repressive religious history of Europe. In a later case, Justice O’Connor herself, after tracing the historical development leading to the writing of the Free Exercise Clause in 1791, concluded that “around the time of the drafting of the Bill of Rights, it was generally accepted that the right to ‘free exercise’ required, where possible, accommodation of religious practice.”94 Accommodation is a revolutionary concept in human history that requires much more than simple tolerance of religion—it is the affirmative and robust protection of full and free religious exercise, rather than a bare commitment not to punish a person for practicing religion or coercing one to violate relief tenets.
James Madison, one of the principal architects of the Bill of Rights, strenuously objected to the use of the word toleration during the drafting of the Bill of Rights. He contended that word implied that the right to practice one’s religion was merely “a government favor, rather than an inalienable right.”95 For Madison, simple “tolerance” countenanced too much state interference in religious conscience. He advocated a shift toward the language of rights because, “all men are equally entitled to the full and free exercise of [religion or the duty we owe our Creator], according to the dictates of conscience.”96 Justice O’Connor correctly observed that in the days when the Bill of Rights was drafted “it was accepted that government should, when possible, accommodate religious practice.” The new republic was inhabited by people of deep religious conviction who expected their government to uphold their religious exercise, especially at a time when government was far less intrusive than it is today. The accommodation principle of the revolutionary leaders—including Madison, Thomas Jefferson, and George Washington—radically departed from the long history of European religious intolerance and rose above the bare level of tolerance that was just emerging in the kingdoms, aristocracies, and theocracies of Europe.97
In abandoning a bare tolerance standard as the guideline for the First Amendment, Justice O’Connor aptly noted in 1997 that the Founding Fathers took a profound step that has deeply shaped the character of this nation:
The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation’s Founders conceived of a Republic receptive to voluntary religious experience, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible government interference, even when a believer’s conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment.98
The Lyng doctrine simply does not comport with the vibrant standard for religious liberty intended by the framers. Instead, Lyng’s tolerance standard harkens us back to the medieval ages, when the nascent nations of Europe merely tolerated the existence of heretics in the community without being punished or coerced into abandoning their dissident religious beliefs.
The emergence of religious liberty in human history is a relatively recent phenomenon. Even though the original teachings in all world religions preach respect for the beliefs of others, few lived up to those ideals.99 Religious liberty existed nowhere in Europe during the Middle Ages. Historians have marked the long and tortuous path that the emergence of religious liberty took in Europe, where an immense change was required to rid itself from centuries of religious intolerance and to rise up to a minimal level of tolerance.100 During that period, heretics were seen as traitors to the state, religious differences were demonized, and it was unthinkable to grant “religious freedom” to heretics, to infidels, or those thought to be held captive by demonic forces.101 Inquisitions were the order of the day, until the crowned heads and pointy-headed potentates of Europe finally realized that for religion to be authentic, articles of faith cannot be rammed down the throat by the church or the state. Instead, belief must be accepted as a voluntary, personal, and free choice; and a coerced or forcibly imposed faith is an absurd contradiction in terms.
However, it was not until the middle of the sixteenth century onward “that a few voices were raised in defense of genuine religious freedom,” according to one historian, and finally, “the execution of Servetus for heresy in Calvin’s Geneva (1553) evoked a response from Sebastian Castellio, On Heretics, Whether they Should be Prosecuted that provided the first full-scale argument for freedom of conscience.”102 This radical new idea did not take hold for over a century, when English pamphlets began to condemn persecution and demand real religious liberty for all, not just toleration for one particular group. The rise from bare tolerance to religious liberty was slow in coming. One historian recounts the many years it took to make that vital transition to the kind of vibrant religious liberty that many take for granted today.
By the end of the seventeenth century, reasonably adequate theories of religious rights had been formulated. Implementing them took much longer. Persecution became more sporadic in the eighteenth century, but it was not until the liberal revolution of the nineteenth century that freedom of religion became widely established in the constitutions of Western states and not until the twentieth century that the major Christian churches proclaimed religious rights as an essential feature of the Christian faith itself.103
The birth of true religious liberty, as it is known today, took place in large measure on our shores, as documented in the historical sources surrounding the writing of the Bill of Rights in 1791. That is why ours is the land of the free.
Unfortunately, Lyng would take us back to a time when society begrudgingly tolerated religious differences and refrained from punishing or coercing religious minorities. We should not accept that retreat from religious liberty. Nor should we allow the legal system to disclaim responsibility to protect Native American worship on holy ground. On the contrary, affirmative remedial protection is required to protect and preserve the last endangered religious sites in Native North America as irreplaceable national treasures. Lest there be any hesitation, the UN Declaration on the Rights of Indigenous Peoples (2007) asks each nation to protect the inherent right of indigenous peoples “to maintain, protect, and have access in privacy to their religious and cultural sites.”104 This tall order is the unfinished business of the next generation.
Beyond the religious human-rights sphere, it is important to decolonize the way we look at the land before the last holy places are gone, if we are ever to become a distinctively American people. The presence of aboriginal holy places makes our nation distinct from any other land. We cannot shed the trappings of the settler-state mentality until we cast aside the role of the conqueror and evolve a land ethic as the social product of a nonsettler state, just like the Native people who came to terms with the land centuries ago. To be sure, our disparate peoples cannot fully adapt to the landscape until we recognize the spiritual side of Mother Earth and take the indigenous perspectives into account. Long ago, the peoples of Europe took God out of nature in that part of the world during the rise of the modern secular age; but the tribal peoples of America tell us that this land is still sacred and the Great Spirit does abide in the natural world. The challenge is to hold the legal system accountable to that reality. After all, in a more just society, it is not hard to imagine the descendants of settlers and Natives joined in a rich, viable relationship that encourages their joint experience living on the land where they were born. Lyng stands as a legal barrier to these social changes. The law should foster, not impede, the negotiation of that new relationship. Hence, this chapter argues for a retreat from injustice manifested in the Lyng doctrine.
The law should take Indigenous religious needs into account so valuable Native American wisdom can be shared about the spiritual side of Mother Earth, the need for a land ethic, and so that our joint experience on the land can be celebrated. A Mohican prophecy shines the way to the mountaintop:
A long time ago the Creator came to Turtle Island and said to the Red People: “You will be the keepers of Mother Earth. Among you I will give the wisdom about Nature, about the interconnectedness of all things, about balance and about living in harmony. You Red People will see the secrets of Nature…The day will come when you will need to share the secrets with other people of the Earth because they will stray from their Spiritual ways. The time to start sharing is today.105
There is one fitting postscript to the Lyng decision: the Forest Service was ultimately foiled by Congress. In 1990, the agency’s plan to destroy the High Country was blocked by the passage of the Smith River National Recreation Area Act.106 This act was spurred by the Indians’ attorneys from the California Indian Legal Services. It added the twelve-hundred-foot G-O Road corridor into the protected Siskiyou Wilderness, ending the misguided project once and for all. The prehuman beforetime spirits had the last word in this matter; and they were more interested in the World Renewal ceremonies of the Yurok, Karok, Tolowa, and Hoopa Indians than the nefarious plans of insensitive Forest Service officials. Consequently, it is still possible for the mystics among these tribes to ascend into the High Country, just as their forbearers have done for centuries, to meet the Great Spirit and obtain the power to help the natural world renew all of its powers intact—a feat for which all of humanity should be grateful. These tribes still retain a rare indigenous religious system, which is a national treasure we should strive to preserve, not destroy.