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7 Va. J. Soc. Pol'y & L. 103 (1999-2000)
A Judicial Dilemma: Indian Religion, Indian Land, and the Religion Clauses

handle is hein.journals/vajsplw7 and id is 111 raw text is: A JUDICIAL DILEMMA: INDIAN RELIGION, INDIAN LAND, AND THE RELIGION CLAUSES Bryan J. Rose* The Supreme Court has received a great deal of criticism in re- cent years for its decisions concerning the religious liberty of mi- nority groups,' and many of those critiques have focused specifi- cally on the rights of Indians.2 Decisions like Employment Division v. Smith,3 involving the religious use of peyote, and Lyng v. Northwest Indian Cemetery Protective Ass'n,4 centering on a dispute about the public use of sacred land, are often cited as ex- emplars of the modern Court's decreased willingness to extend re- ligious freedoms to minorities. In fact, Smith and Lyng are often analyzed together, as two manifestations of a new and strict judi- cial approach to religious freedom.5 While this critique may reflect * Law Clerk to The Honorable Joel M. Flaum of the United States Court of Appeals for the Seventh Circuit. J.D., University of Virginia School of Law, 1999; M.A., Religious Studies, Indiana University, 1996. The author would like to express his gratitude to Richard Merrill, Lowell Rose, and Matthew Waxman for their invaluable comments and suggestions on earlier drafts. The author would also like to thank Kathryn Rose, whose love, support, and guidance made this Note possible. 1 See Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993); Jesse H. Choper, The Rise and Decline of the Constitutional Protection of Religious Liberty, 70 Neb. L. Rev. 651 (1991); Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1 (1991); Christopher E. Smith & Linda Fry, Vigilance or Accommodation: The Changing Supreme Court and Religious Freedom, 42 Syracuse L. Rev. 893 (1991). 2 See John Thomas Bannon, Jr., The Legality of the Religious Use of Peyote by the Native American Church: A Commentary on the Free Exercise, Equal Protection, and Establishment Issues Raised by the Peyote Way Church of God Case, 22 Am. Indian L. Rev. 475 (1998); Craig J. Dorsay & Lea Ann Easton, Employment Division v. Smith: Just Say No to the Free Exercise Clause, 59 UMKC L. Rev. 555 (1991); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990); Rodney K. Smith, Sovereignty and the Sacred: The Establishment Clause in In- dian Country, 56 Mont. L. Rev. 295 (1995). 3 494 U.S. 872 (1990). 4 485 U.S. 439 (1988). 5 See Bette Novit Evans, Interpreting the Free Exercise of Religion: The Constitution

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