Lyng v. Northwest Indian Cemetery Protective Association: Bulldozing First Amendment Protection of Indian Sacred Lands
![handle is hein.journals/eclawq16 and id is 531 raw text is: Lyng v. Northwest Indian Cemetery
Protective Association: Bulldozing
First Amendment Protection of
Indian Sacred Lands*
Donald Falk**
INTRODUCTION
The United States Supreme Court's decision in Lyng v. Northwest
Indian Cemetery Protective Association I dramatically curtailed the ability
of American Indians to preserve sacred sites on federally owned public
lands.2 A five to three majority reversed lower court decisions that had
enjoined construction of the Gasquet-Orleans Road (G-O Road)3
through sacred mountain territory and held that the development of pub-
lic lands cannot implicate the first amendment's free exercise clause. The
Court's decision limits the application of the free exercise clause to gov-
ernment actions that penalize religious activity or otherwise coerce indi-
vidual behavior contrary to religious belief. It allows the government,
unconstrained by the clause, to prevent religious activity from taking
place.
Copyright © 1989 by ECOLOGY LAW QUARTERLY
* An earlier draft of this Note received honorable mention in the 1989 Ellis J. Harmon
Environmental Law Writing Competition.
** Candidate for J.D. 1990, School of Law (Boalt Hall), University of California at
Berkeley; M.A. 1977, University of Chicago; B.A. 1976, University of California at Berkeley.
The author thanks Theodoratus Cultural Research, California Indian Legal Services, and the
Sierra Club California/Nevada field office for help in gathering documents, Christopher Peters
and Julian Lang for clarifying the Indian plaintiffs' point of view, Andrew Pincus, formerly
Assistant to the Solicitor General, for once again pressing the government's case, and Profes-
sor John Dwyer for his instant sifting of this Note's title from the convoluted draft title.
1. 108 S. Ct. 1319 (1988).
2. Public lands most properly refers to lands managed by the Bureau of Land Man-
agement. This Note refers to all federal lands open to the public (as distinguished from, e.g.,
military reservations) as public lands, whether the managing agency is the Forest Service,
Bureau of Land Management, National Park Service, or Fish and Wildlife Service.
This Note uses the terms American Indian or Indian to refer to the indigenous peo-
ples of the contiguous 48 states and coastal Alaska. Most of the legal and factual principles
discussed in this Note apply with equal relevance to other Native American peoples such as
Eskimos, Inuits, and Native Hawaiians.
3. The small towns of Gasquet and Orleans are the sites of the district ranger stations
for the two northernmost of the four ranger districts in the Six Rivers National Forest. See
FOREST SERVICE, U.S. DEP'T OF AGRICULTURE, Six RIVERS NATIONAL FOREST MAP
(1982) [hereinafter Six RIVERS MAP].](ViewImageLocal?handle=hein.journals/eclawq16&div=30&collection=journals&method=preview&ext=.png&size=3)
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Lyng v. Northwest Indian Cemetery Protective Association: Bulldozing First Amendment Protection of Indian Sacred Lands
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