The Join Resolution on American Indigenous Religious Freedom explicitly recognizes the abuses that Indians have suffered in the name of conservation (which has long relied on U.S. concepts of property rights and public domain), and the long history of explicitly outlawing Indian religions (Bowers and Carpenter, 500). Accordingly, the President was supposed to instruct federal agencies “to evaluate their policies and procedures in consultation with native traditional religious leaders…” in order to rectify this damaging history. In case any doubt arose, the Join Resolution and AIRFA clearly delineated federal policy to protect past abuses.
Unlike the Lyng decision, the Joint Resolution and AIRFA recognize that U.S. public domain is rooted in Indian land theft. Bowers and Carpenter note that “any unclaimed land would become part of the public domain to be eventually opened for settlement” (498). It is therefore ironic that the government uses its ownership of the land as its justification in this case. It argued that “none of this land ever formed part of an Indian Reservation, and no Indian treaty imposes a trust duty upon the United States with respect to this land” (Bowers and Carpenter, 517). This argument disguises the fault of the government in not including High Country in the reservation, and that it was Congress who did not ratify the treaty. This also inherently negates aboriginal title to the land, anchoring any land rights Indians may have to a non-existent treaty.
Besides government property rights, the Court’s decision also rested on their interpretation of Indian religion. The U.S. courts became the arbiters of what is “central” or “inherent” to Indian religion. Luckily the first federal court judge found High Country to be intrinsic to the Tribes’ practice, but other courts did not rule similarly. Even if a judge rules favorably, whether or not an Indian religion is “valid” should not rest in the hands of a U.S. court. This also goes against what previous Court cases have said about not wanting to put courts in the position of ruling on the validity of religions. This is inherently ethnocentric on two counts: first, that the government is ruling on a completely different belief system; and two, that monotheistic religions would never have the same problem. Arguing that if a church were built in High Country, it could move, is a moot point. Not every religion can be expected to abide by the dominant norms. Monotheistic belief systems are not tied to the land the way most indigenous belief systems are. The Court failed to respect that and instead judged Indian religions by its own standards. This kind of “secularism” is an abrogation of the Free Exercise clause (as the federal court judge recognized) because a rule that supposedly applies “equally” to everyone does not mean that its results are equitable.
The Supreme Court’s decision thus rests on two ethnocentric ideologies: first, that the government’s property rights outweighed the plaintiff’s religious claims (without recognizing the troubled history of how the government acquired that property); and second, that Indian religions should conform to mainstream/monotheistic religions, and that a U.S. court should be able to determine the validity of an Indian religion.