Examining a series of court decisions made during the 1980s
regarding the legal claims of several Native American tribes who
attempted to protect ancestrally revered lands from development
schemes by the federal government, this book looks at important
questions raised about the religious status of land. The tribes
used the First Amendment right of free exercise of religion as the
basis of their claim, since governmental action threatened to alter
the land which served as the primordial sacred reality without
which their derivative religious practices would be meaningless.
Brown argues that a constricted notion of religion on the part of
the courts, combined with a pervasive cultural predisposition
towards land as private property, marred the Constitutional
analysis of the courts to deprive the Native American plaintiffs of
religious liberty.
Brown looks at four cases, which raised the issue at the federal
district and appellate court levels, centered on lands in
Tennessee, Utah, South Dakota, and Arizona; then it considers a
fifth case regarding land in northwestern California, which
ultimately went to the U.S. Supreme Court. In all cases, the author
identifies serious deficiencies in the judicial evaluations. The
lower courts applied a conception of religion as a set of beliefs
and practices that are discrete and essentially separate from land,
thus distorting and devaluing the fundamental basis of the tribal
claims. It was this reductive fixation of land as property,
implicit in the rulings of the first four cases, that became
explicitly sanctioned and codified in the Supreme Court's decision
in "Lyng v. Northwest Indian Cemetery Protective Association" of
1988. In reaching such a position, the Supreme Court injudiciously
engaged in a policy determination to protect government land
holdings, and did so through a shocking repudiation of its own long
established jurisprudential procedure in cases concerning the free
exercise of religion.
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