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Religion, Law, and the Land: Native Americans and the Judicial Interpretation of Sacred Land. Contributions in Legal Studies. By Brian Edward Brown. Westport, Conn, and London: Greenwood Press1999. No. 94. Pp. 199. $62.50. ISBN: 0-313-30972-8.

Published online by Cambridge University Press:  24 April 2015

Bryan H. Wildenthal
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Review Essays and Reviews
Information
Journal of Law and Religion , Volume 16 , Issue 2 , 2001 , pp. 743 - 750
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Copyright © Center for the Study of Law and Religion at Emory University 2000

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References

1. The terms are not necessarily synonymous, nor do American Indians themselves necessarily prefer (as is sometimes assumed by non-Indians) the term “Native American,” as Professor David Wilkins (himself a Lumbee Indian) has pointed out. See Wilkins, David E., American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice x-xi, xv (U. Texas Press 1997)Google Scholar. I myself, as a non-Indian sympathetic to Indian concerns and perspectives, have gone back and forth in my own usage, and cheerfully continue to do so here.

2. Or. Dept. of Human Resources v. Smith, 494 U.S. 872 (1990); see Bowen v. Roy, 476 U.S. 693 (1986); see also Lyng v. N.W. Indian Cemetery Protective Assn., 485 U.S. 439 (1988); U.S. Const, amend. I (“Congress shall make no law respecting an establishment of religion [the Establishment Clause], or prohibiting the free exercise thereof [the Free Exercise Clause[ ….”). For a concise historical overview of the issues raised by American Indian religious claims, see also Wildenthal, Bryan H. & O'Neil, Patrick M., Native American Religious Rights, in Religion and American Law: An Encyclopedia 330–340 (Finkelman, Paul ed., Garland Publg. 2000)Google Scholar. An excellent book-length historical survey of Indian rights generally is Wunder, John R., “Retained by the People”: A History of American Indians and the Bill of Rights (Oxford U. Press 1994)Google Scholar.

3. See Pub. L. No. 103-141, 107 Stat. 1488 (Nov. 16, 1993), codified at 42 U.S.C. §§ 2000bb to 2000bb-4 (1993) (purporting to restore pre-Smith “compelling interest” test of religious freedom claims); City of Boeme v. Flores, 521 U.S. 507 (1997) (striking down RFRA in part). It is often overlooked that Boeme, which found RFRA's application to state and local governments to exceed Congress's power under § 5 of the Fourteenth Amendment, did not affect RFRA's protection of religious freedom against federal governmental action.

4. N. W. Indian Cemetery Protective Assn. v. Peterson, 565 F. Supp. 586 (N.D. Cal. 1983), aff'd in part, vacated in part, 764 F.2d 581 (9th Cir. 1985) (opinion vacated on reh'g); aff'd in part and vacated in part, 795 F.2d 688 (9th Cir. 1986) (on reh'g); rev'd sub nom. Lyng v. N.W. Indian Cemetery Protective Assn., 485 U.S. 439 (1988).

5. 480 F. Supp. 608 (E.D. Term. 1979), aff'd, 620 F.2d 1159 (6th Cir. 1980), cert, denied, 449 U.S. 953 (1980).

6. 455 F. Supp. 641 (D. Utah 1977), aff'd, 638 F.2d 172 (10th Cir. 1980), cert, denied, 452 U.S. 954(1981).

7. 708 F.2d 735 (D.C. Cir. 1983), cert, denied, 464 U.S. 1056 (1984).

8. 541 F. Supp. 785 (D.S.D. 1982), aff'd, 706 F.2d 856 (8th Cir. 1983), cert, denied, 464 U.S. 977(1983).

9. This is confirmed by a scan of the sources cited in his endnotes and bibliography (179-192). In addition to closely analyzing the facts and legal issues of the five cited cases, he offers some limited discussion of a few leading Supreme Court precedents discussed and relied upon in them.

10. See Dussias, Allison M., Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stan. L. Rev. 773 (1997)CrossRefGoogle Scholar. For a sampling of other recent articles focusing at least in substantial part on American Indian sacred site religious claims, see Rhodes, John, An American Tradition: The Religious Persecution of Native Americans, 52 Mont. L. Rev. 13 (1991)Google Scholar, O'Brien, Sharon L., Freedom of Religion in Indian Country, 56 Mont. L. Rev. 451 (1995)Google Scholar, Winslow, Anastasia P., Sacred Standards: Honoring the Establishment Clause in Protecting Native American Sacred Sites, 38 Ariz. L. Rev. 1291 (1996)Google Scholar, and Tapahe, Luralene D., Comment, After the Religious Freedom Restoration Act: Still No Equal Protection for First American Worshipers, 24 N.M. L. Rev. 331 (1994)Google Scholar.

11. 406 U.S. 205(1972).

12. See Sequoyah, 620 F.2d at 1164.

13. Dussias, supra n. 10, at 806.

14. Id.

15. Id. at 808; see also Sequoyah, 620 F.2d at 1162, 1164-1165.

16. Brown is Associate Professor of Religious Studies at Iona College. The “About the Author” note following p. 199 indicates that he “teaches classes in the Buddhist, Chinese, and Native American traditions; religious cosmology; and the Constitutional law of church-state relations.” The Iona College website indicates that he earned a Ph.D. in History of Religions from Fordham U. and a J.D. from N.Y.U. (http://www.iona.edu/facultv/bbrovWbebhome.htm)

17. Dussias, supra n. 10, at 846; see also id. at 776-787, 846-850.

18. See McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990)CrossRefGoogle Scholar [hereinafter McConnell, Origins]; see also McConnell, Michael W., Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990)CrossRefGoogle Scholar (criticizing Or. Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)).

19. McConnell, Origins, supra n. 18, at 1511-1512.

20. See Lyng, supra n. 5. Brown is too hard on Judge Canby, who, after all, upheld a sacred site claim against the tide of contrary precedent from four other federal circuits. Judge Canby's sensitivity to the context of that claim within the broader sweep of American Indian law may doubtless be ascribed to his own stature as a distinguished scholar in the field, both before and after ascending to the bench. See Canby, William C. Jr., American Indian Law in a Nutshell (3d ed. 1998)Google Scholar; Frickey, Philip P., Scholarship, Pedagogy, and Federal Indian Law, 87 Mich. L. Rev. 1199 (1989)CrossRefGoogle Scholar (reviewing Second Edition of Judge Canby's Nutshell); Matheson, Alan A., O'Grady, Catherine Gage & Dworkin, Judith M., Judge William C. Canby, Jr.: A Tribute, 33 Ariz. St. L.J. 1 (2001)Google Scholar.

21. Lyng, 485 U.S. at 453.

22. Id. at 460-461 (Brennan, J., joined by Marshall and Blackmun, JJ., dissenting).

23. See e.g. Dussias, supra n. 10, at 819-833 (discussing “tension between property rights and free exercise rights … in … Native American free exercise cases”; id. at 819, and illuminating linkages between modern judicial reliance on property rights analysis and 19th century efforts to indoctrinate Indians in concept of individual property rights and to treat Indian souls as, in effect, unoccupied property ripe for conversion to Christianity).

24. See e.g. Crow, 541 F. Supp. 785, 792 (Indian claimants demanded that state prohibit tourists visiting Bear Butte State Park from “photograph[ing] [Indian] vision seekers, ceremonies, or religious objects; bringing] water and food on the Butte during vision quest …; takfing] religious offerings off the Butte; [and that state prohibit] non-Indian women having their menstrual period [from] go[ing] on the Butte during a vision quest”).

25. See O'Brien, supra n. 10, at 474-484. This is yet another example of an insight of prior scholarship, dealing in this case with a basic tenet of American Indian law, that Brown's book would have profited from considering.

26. One passage might be taken by readers to imply that the road was built. “Yuroks, Karoks, and Tolowas could … resis[t] the visual and aural distractions that would come from the construction, lumbering, and subsequent traffic along the Forest Service road that would cut its way to the very peripheries of the once remote and silent sanctuaries of Doctor Rock, Chimney Rock, and Peak 8.” (175)

27. See Smith River Natl. Recreation Area Act, Pub. L. No. 101-612, 104 Stat. 3209 (1990); Dellios, Hugh, Rites By Law: Indians Seek Sacred Lands, Chi.Trib. Al (07 4, 1993)Google Scholar.

28. See (16-18, 38, 68, 73-75, 91, 101-102, 108, 116-117, 125-126, 131-132, 136, 171-172; Pub. L. No. 95-341, 92 Stat. 469 (1978)) (codified in relevant part at 42 U.S.C. § 1996).

29. See Lyng, 485 U.S. at 454-455. President Clinton ordered federal agencies to at least try to avoid harming or impeding access to sacred sites, see Executive Or. 13007, 61 Fed. Reg. 26771 (May 24, 1996), but that too lacks judicial enforceability.

30. This was a comprehensive survey of the cultural and historical significance of the area, which strongly recommended against completion of the road. See (125-131, 171-172).

31. For an absorbing historical and cultural account of the Indian and non-Indian societies of the latter region (not strictly a law book though written by a distinguished legal scholar and touching on many legal controversies), see Wilkinson, Charles, Fire on the Plateau: Conflict and Endurance in the American Southwest (Island Press 1999)Google Scholar.