Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)

How does the constitution resolve a conflict between the government’s property rights and the right of groups to engage in religious practices on lands they consider sacred? The Supreme Court answered that question in favor of the government’s property rights in Lyng v. Northwest Indian Cemetery Protective Association when it ruled that the free exercise clause of the First Amendment did not prohibit the federal government from permitting road construction and logging activities on federal lands, even though the activities would have a devastating impact on the traditional religious practices of several Native American tribes.

The case arose when the U.S. Forest Service proposed to build a road through national forest land in California. Aware that the area had historically been used for various religious ceremonies by the Yurok, Karok, and Tolowa Indians, the Forest Service commissioned a study. The study concluded that use of the area was ‘‘an integral and indispensable part’’ of the tribal members’ religious practices, that the tribal members’ religious use of the area was ‘‘dependent upon . . . privacy, silence and an undisturbed setting,’’ and that, consequently, the construction of the road would cause ‘‘serious and irreparable damage’’ to the tribal members’ ‘‘belief systems and lifeway.’’ The report, therefore, recommended that the road not be built. Although it made efforts to keep the route as far as possible from sites used for specific spiritual activities, the Forest Service rejected the recommendation and decided to proceed with the road and to permit logging activities in the area. The Forest Service’s decision was challenged on various grounds by various groups, including several members of the affected tribes.

Focusing primarily on the Free Exercise challenge, the U.S. Supreme Court, by a five-to-three vote, rejected the tribal members’ claims. The Court reasoned that even though the tribal members’ religious beliefs were sincere and even though the government’s proposed action would have ‘‘severe adverse affects’’ on their religious practices, the free exercise clause did not require the government to demonstrate a ‘‘compelling need’’ to justify its proposed actions (something the Court had required in other free exercise cases, such as Sherbert v. Verner), because those actions had ‘‘no tendency to coerce [tribal members] into acting contrary to their religious beliefs.’’ Instead, the Court concluded, the tribal members were attempting to dictate how the government structured ‘‘its own internal affairs,’’ something the free exercise did not require, as Bowen v. Roy made clear. In that regard, the Court found it significant that the lands in question were owned by the United States, rather than the Tribes, noting that a ruling in favor of the tribal members would in essence grant them ‘‘de facto beneficial ownership of some rather spacious tracts of public property.’’ Thus, the Court concluded, even if the proposed actions would ‘‘virtually destroy the Indians’ ability to practice their religion,’’ the tribal members’ were not entitled to relief, because the constitution afforded them no right to ‘‘divest the Government of its right to use what is, after all, its land.’’ The Court also rejected the tribal members’ claims that the proposed actions violated the American Indian Religious Freedom Act (AIRFA), concluding that AIRFA created no judicially enforceable individual rights.

The Court’s ruling in Lyng weakened the protection afforded religious practices (as opposed to beliefs) in several respects. First, it narrowed the scope of cases to which the compelling interest test applied, foreshadowing the almost wholesale abandonment of that test in religious practices cases a few years later in Employment Division of Oregon v. Smith. Second, the ruling severely limited the constitutional protection afforded sacred sites by linking that protection to ownership rights. This portion of the ruling is especially harmful to Native American religions, because Native Americans are more likely to consider lands sacred, their sacred sites are mostly within U.S. territory, and they have been dispossessed of so much of their property over the past three centuries. The ruling also adversely affected Native American religious practices by rendering largely meaningless the provisions of AIRFA, which many had hoped would provide protection for the unique aspects of Native American religions. Thus, although Lyng had some impact on the development of the law for all religious groups, it was especially devastating for Native American religions. The Court’s ruling demonstrates the difficulties Native Americans have had in using the U.S. judicial system to protect their religious practices. Interestingly, the proposed road was never constructed (although some timber was removed) because Congress subsequently added the area to the national wilderness system.

KEVIN J. WORTHEN

References and Further Reading

• Brown, Brian Edward. Religion, Law, and the Land: Native Americans and the Judicial Interpretation of Sacred Land. Westport, CT: Greenwood, 1999, pp. 119–170.
• Falk, Donald, Lyng v. Northwest Cemetery Protective Association: Bulldozing First Amendment Protection of Indian Sacred Lands, Ecology Law Quarterly 16 (1989): 2:515–570.
• Nowak, John E., and Ronald Rotunda. Constitutional Law. St. Paul, MN: West, 2000, pp. 1373–1403.
• Worthen, Kevin J, Protecting Sacred Sites of Indigenous Peoples in U.S. Courts: Reconciling Native American Religion and the Right to Exclude, St. Thomas Law Review 13 (2000): 1:239–258.

Cases and Statutes Cited

• Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)
• Sherbert v. Verner, 374 U.S. 398 (1963)
• Bowen v. Roy, 476 U.S. 693 (1986)

See also Bowen v. Roy, 476 U.S. 693 (1986); Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Native Americans and Religious Liberty; Sherbert v. Verner, 374 U. S. 398 (1963)