God is Red, Land is Dead? A Call to Reject the Lyng Line of Cases
Posted: 16 Oct 2020
Date Written: August 28, 2020
Does the First Amendment protect the free exercise rights of Native Americans? Under current doctrine, the answer is no. In Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), the Court held that the federal government’s property rights trumped the free exercise rights of the Native American plaintiffs. This paper argues that Lyng was incorrectly decided as a matter of law. Accordingly, this paper advocates for the adoption of a new free exercise test that renders Indigenous claims cognizable to courts.
In part, this paper responds to Professor Maggie Blackhawk’s recent call to reexamine federal Indian law jurisprudence. Specifically, it demonstrates that rejection of the Lyng line of cases can address the continued legacy of American colonialism. Drawing from existing scholarship, this paper offers a formulation of RFRA’s substantial burden test that accommodates Indigenous plaintiffs’ claims to sacred sites. This paper also adds to the literature by applying the Court’s Establishment Clause analysis from American Legion v. American Humanist Society (2019). It concludes that rejection of Lyng is key to preserving both the free exercise rights of Indigenous peoples and the integrity of First Amendment jurisprudence.
Note: This paper won first prize in the Eleventh Annual Religious Liberty Student Writing Competition sponsored by the Washington DC/ Mid-Atlantic Chapter of the J. Reuben Clark Law Society & the International Center for Law and Religion Studies.
Keywords: Indigenous, sacred sites, First Amendment, free exercise, establishment clause
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