The Indian Wars Continued - Lyng v. Northwest Indian Cemetery Protective Association Notes 10 Mississippi College Law Review 1989-1990

10 Miss. C. L. Rev. 79 (1989-1990)
The Indian Wars Continued - Lyng v. Northwest Indian Cemetery Protective Association

handle is hein.journals/miscollr10 and id is 85 raw text is: THE INDIAN WARS CONTINUED
Lyng v. Northwest Indian Cemetery Protective Association,
485 U.S. 439 (1988)
I. INTRODUCTION
The Indian Wars, those fought between the Native American Indians and the White
Man, were over by the beginning of the twentieth century. Unfortunately, the Indians' fight
for recognition and equal treatment from the United States Government, the same govern-
ment which demoralized their race, stripped them of their land, and forced them into sub-
mission as a vanquished people, has never ended. The adversary is still the United States
Government, but in its capacity as a lawmaker, not as an army. The same prejudice and
insensitivity that caused and perpetuated the Indian Wars continues today, permeating
laws which affect the Indians and the court decisions interpreting those laws.
Lyng v. Northwest Indian Cemetery Protective Association1 illustrates the continuing
conflict between the Indians and the United States Government, this time in the context of
religion. The United States Constitution, applicable to all American Indians as citizens of
the United States, states that Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof ... .2 Prohibitions, however, may take
many forms and need not be direct or express in order to effect prohibitive results. Such
was the issue in Lyng, in which the United States Supreme Court made an attempt, albeit
futile, to narrow the finite yet indeterminable definitions of what may, or may not, consti-
tute an unconstitutional prohibition of religion.3
II. FACTS
In 1972 the United States Forest Service began formulating a forest management plan
and, pursuant to that plan, issued a Draft Environmental Statement (DES) for the Blue
Creek and Eight Mile Planning Units of Six Rivers National Forest.4 The DES was com-
pleted and circulated among Forest Service policy-makers for comment and discussion. In
1975 a Final Environmental Statement (FES), proposing various management plans for
the Blue Creek Unit, was finished.' The Forest Service selected one variation of the plan
and in 1981 completed the Blue Creek Implementation Plan which proposed harvesting
733 million board feet of Douglas fir from the Blue Creek Unit over an eighty-year pe-
riod.6
In conjunction with the Blue Creek Project and to facilitate hauling large amounts of
timber and to control fires, the Forest Service began planning for the upgrading, paving,
and completion of the Gasquet-Orleans Road (G-O Road).7 The finished project would be
1. 485 U.S. 439 (1988).
2. U.S. CoNST. amend. I.
3. 485 U.S. 439 (1988).
4. Northwest Indian Cemetery Protective Ass'n v. Peterson, 565 F. Supp. 586, 590 (N.D. Cal. 1983).
5. Id.
6. Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 690, 699 (9th Cir. 1985).
7. Petition for Writ of Certiorari at 2-3, Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).
79

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