For several reasons, it is impossible to neatly and succinctly resolve what “equal treatment” means for Indian tribe members who are also U.S. citizens. Firstly, because of the points articulated extremely clearly by Justice Brennan in the dissent: that “The Court’s approach to Free Exercise jurisprudence might protect practitioners of Judeo-Christian religions, which are based on individual belief in God; but it offered no protection for practitioners of Indian traditions, which do not separate belief from practice, and which rely on community engagement with specific sacred places to keep the culture and religion alive.” The writers of the Constitution were uniformly Christians descended from Western Europe—most of them probably didn’t even conceive of valid theological systems that differed greatly from their own. The vast and only loosely relevant hypotheticals drawn out by Justice O’Conner assert a fear that the Indians will take advantage of white politicians lack of familiarity with their religions to obtain selfish or material objectives, but given the context of Indian religions in the U.S., this anxiety is completely inappropriate.
Furthermore, the historical background that enabled the Lying case was the U.S. government’s extremely questionable methods of obtaining “ownership” of the Klamath Indians’ aboriginal territory. Various articles in this class have repeatedly told us that Indian religions are distinct from Judeo-Christian ones because many are inextricably interconnected with the geographic area where they are practiced. But this would never have become a legal issue if tribes had not been treated with the racism and ruthlessness of North American colonization. O’Conner makes Lying a case about government rights and the dangers the U.S. could face if it gives one group special treatment—if we give these tribes this right, what’s to stop all Indians from getting whatever they want? We don’t even know what their religious beliefs are! It is difficult to feel that this case is about what Native Americans can and cannot do based on their religious rights; The case arose from the fact that the U.S. government used cruel and dehumanizing methods of force and deceit to rob the Indian’s land, and later in asserting that Indians are “equal citizens” believed it had undone all the wrongs committed in earlier periods. Lying represents a completion of the colonial conquest that began in the area in the early nineteenth century. It indicated that as of the 1988 decision, the doctrine of discovery was perhaps less relevant and more repressed than centuries earlier, but still functioning and thriving. The Supreme Court majority wanted to make their decision simple by emphasizing that the case was about property more than religious rights, but conveniently chose to overlook the highly complex and unjust history of property rights in the Klamath region.