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Abstract: In Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court refused to enjoin road building and logging activities that were in close proximity to sacred Yurok, Karuk, and Tolowa sites in northern California. This chapter—adapted from a 1990 Law Review article—describes the failure of the U.S. legal system to protect Indigenous religious freedom. The American Indian Religious Freedom Act (AIRFA), federal legislation passed to protect Indigenous rights, lacks the substantive teeth that laws must have to protect rights. The Supreme Court failed to provide Native American religious freedom the protection required by the Constitution because the Court departed from its traditional balancing test for unlawful government interference with the free exercise of religion. Reading this text decades after it was written, it sounds prophetic when it tells us that the precedent of Lyng would have a major impact in future Native American religious cases, and that its impact would extend to more than just Indigenous litigants.
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