Can we even call this law?

Can we even call this law?

by Daniel Orr -
Number of replies: 0

Justice Sandra Day O’Connor issued the court’s decision in Lyng v. Northwest Indian Cemetery. Justice Brennan dissented however, writing a comprehensive critique of the majority decision. The majority decision overturned three federal court decisions, and dismissed the defendants' arguments which relied upon 7 Congressional acts, the First Amendment, aboriginal water and fishing rights, and the federal trust relationship with tribes. As Justice Brennan explains, the court’s reasoning in this case severely constricted the First Amendment protections for religious practice, misconstrued the defendants' case to violate the establishment clause, ignores congressional intent as evident through numerous legislative acts, and failed completely to acknowledge the fiduciary relationship of the federal government to tribes.  Justice Brennan indicates that the court imposed Western religious norms onto the tribal practices discussed in order to negate their appeal to the First Amendment. This ethnocentrism changed what was a threat to entire communities and tribal religion into a contention over the rights of individuals in contrast to the rights of the federal government. In addition, the court rationalized its decision by appealing to the government’s property rights which it argued superseded the private interests of individual Indians. This is to me, the more important aspect of the case.

The majority of the argument centers on the appeal to First Amendment protection, only because the court could not avoid such a serious constitutional claim. But ultimately I believe that the interests which guided this decision had nothing to do with the validity of either party's claims, but the need of the federal government to reaffirm its total authority over public lands. Justice Brennan clearly outlines that the defendants' appeals to First Amendment precedents, some of which were even issued by the same Court, supported their argument and the majority’s decision unfairly and illogically reinterpreted its own decisions to deny Indian religions protection under the Constitution (despite AIRFA.) It appears that this entire line of reasoning was fabricated in order to dismiss the issue so that the court could attend to its more serious concern of protecting federal property rights.

The Ninth Circuit court of appeals introduced this property rights argument, though it still decided in favor of the Indian defendants. The Supreme Court picked up on this reasoning and used it reduce any further contest to its decision. The Court argued that the tribal requests to not develop the region in question would not only violate the Establishment clause, but likewise impose de facto tribal ownership of what is the government’s land. What the Court fails to acknowledge is that the very land in question had not been ceded by treaty to the government, but had been taken entirely by force. Justice Brennan breaks apart the Court’s invocation of the Establishment clause and its claims on de facto ownership. What remains after the Justice’s dissent is the understanding the Court had previously determined that the central issue in this case was the ability of the federal government to use “its” land, and all justifications were subsequently formulated to support this issue. The case then has nothing to do with religious freedom, but the need to affirm the conquest of indigenous lands. Despite the proposed G-O road having negligible benefits, here it was necessary to affirm the ability of the federal government to override indigenous religious rights for any future economic exploits on “public” lands. To have acknowledged the religious rights of tribes in this case would have threatened exploitative ventures throughout the country and the very ownership of public lands, which had only been secured through force and conquest.