In Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), the Supreme Court declared constitutional the Forest Service's development plan in an area of the Six Rivers National Forest (known as the High Country) that is central to the religious practice of the Yurok, Karuk, and Tolowa Nations. The Court admitted that “[i]t is undisputed that the Indian respondents’ beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion” (447). Nevertheless, because the disputed area was on public land, the Court thought that the government should be allowed to manage its property in any way it saw fit, regardless of the severe adverse effects on the religious practice of the local Indigenous nations. In this article, I read materials from the trial that led to the Lyng decision, focusing on the Indigenous witnesses and their testimony that has been largely ignored in the Lyng decision. The U.S. legal framework of free exercise does not allow the courts to fully consider the stories told by the Indigenous witnesses in trial. A law-and-literature approach allows me, though, to tell a different story about the High Country, one that centers Indigenous knowledge and sovereignty.

“It is my opinion,” testified the chairman of the Hopi Indian Tribal Council in the unsuccessful effort of the Hopi (and the Navajo) to stop further development of a ski resort on U.S. Forest Service land in the San Francisco Peaks in North Central Arizona,

With such high stakes involved it is little wonder that the Hopi Indian Tribe resorted to the courts. Yet, such a step is a high risk venture. The immediate costs in terms of time, money, and emotional involvement are likely to be high. Further, every such investment involves the possibility of loss of the case and with it the additional possibility that the decisive language of the court may find its way into opinions in similar cases. Most importantly, perhaps, an attempt to defend a tribal religion in court could involve subtle longer range costs. Paradoxically, an effort to defend tribal religion may also undermine it.

Felix S. Cohen, the distinguished synthesizer of American Indian law, prophetically proclaimed more than a generation ago:

Since these words were written the practice of Indian law and of law among Indians has greatly expanded. Indian litigants have made some notable advances and suffered some setbacks. But, as the most recent revisors of the Cohen Handbook point out, “the abiding principles of Indian law have changed little” since Cohen articulated them in 1942. Included among these principles or doctrines are acknowledgement of the federal government's “trust obligation to Indians” and recognition that “Indian tribes and individuals are entitled to be free of invidious discrimination under federal and state laws.” The implications and even the truth of these principles have been extensively debated and litigated. Their relevance for the practice of Indian religions remains hazy. With the passage of the American Indian Religious Freedom Act (hereinafter AIRFA) a decade ago, there was some reason to believe that that practice might at last fall under the aegis of the trust responsibility, but the Act has been interpreted by the Courts to add nothing substantial to Indian rights and protections under the religion clauses of the First Amendment, rights and protections enjoyed by all Americans. And the Congress has done nothing since the passage of AIRFA to counter that view.

The U. S. Forest Service has proposed oil and gas development for wildlands adjacent to the Blackfeet Indian Reservation, Glacier National Park, and the Bob Marshall wilderness. In response, traditional Blackfeet tribesmen have argued that these Badger-Two Medicine wildlands are sacred and essential to their traditional religion. In this essay, I document the Blackfeet Tradition and explore the religious significance of these wildlands. Investigating several myths germane to the Badger-Two Medicine wildlands, I conclude that the area is sacred and essential to traditional Blackfeet religion.

In cautioning the planners of cities, Plato declared that particular locations possess ecological and spiritual qualities which markedly affect human character development. This ancient observation contains an essential wisdom for contemporary land use planners, as they consider an area in northwestern Montana along the eastern slopes of the continental divide, just southeast of Glacier National Park, an area known as the Badger-Two Medicine. In 1855, these wildlands were retained in reservation status via a treaty between the United States and the Blackfeet Indians. An agreement was subsequently reached between the parties ceding the Badger-Two Medicine wild-lands to the United States. In this agreement, the Blackfeet reserved rights “to go upon” these lands, to hunt and fish thereon, and to harvest timber therein for personal and domestic use. The Badger-Two Medicine later became a unit within the Lewis and Clark National Forest.

In his essay, Professor Bassett traces the roots of the “myth of the nomad,” a myth which was used to justify the dispossession and destruction of Native Americans by colonial settlers. Bassett's primary focus is on a careful exposition of the sources and uses of the myth. The historical evidence he presents is persuasive and interesting, and his analysis is often thought-provoking.

I find myself, however, in some disagreement with Bassett over the function this type of work serves. While Bassett recognizes that “[w]e are all creators of myths,” he insists that we should “bring to light” the myths in the law and expose their “insidious uses[s].” As Bassett observes, the first-year property course offers numerous opportunities for the unmasking of such myths. Bassett seems to suggest that we view his fascinating essay as one such attempt to “demythologize the law.”

It is not possible, nor would it be desirable, to “demythologize” the law. The law is constructed upon, and often even constituted by, myths. The effort to eliminate those myths would produce legal concepts that were far less human, and probably no more humane. Our task, as both teachers and scholars, should be to recognize and evaluate the myths we use, but not necessarily to abandon them. Bassett's essay offers a fine beginning for this project of understanding.

In Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), the Ninth Circuit seated en banc found that federal approval of a plan by a ski resort to make artificial snow with treated sewage effluent on Arizona's San Francisco Peaks, a mountain massif held sacred by the Navajo, Hopi, and four other claimant tribes, did not violate their religious liberty under the Religious Freedom Restoration Act (RFRA). The court accepted numerous factual findings about sincere religious exercise, but found federal approval of the scheme did not constitute a “substantial burden” on religion; rather, it only “decreased spiritual fulfillment” of tribal members. Despite a spirited dissent, the Ninth Circuit narrowly interpreted RFRA's language of “substantial burden” by making reference to the Supreme Court's 1988 holding in Lyng v. Northwest Cemetery Protective Association, 485 U.S. 439 (1988). This article shows how conventional wisdom about individualistic, subjective, and protean “spirituality” and in particular about “Native American spirituality” equips the court to denature highly specific and collective religious claims about the mountain by plaintiff tribes, and in turn to naturalize those claims as merely spiritual. Misrecognition of Native religions as Native spirituality then troubles the substantial burden analysis. While Navajo Nation suggests courts may never fully understand Native claims to sacred sites, the Supreme Court's 2014 holding in Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751, 2759 (2014), opens the door to revisiting the interpretive posture spelled out in Navajo Nation, and the Ninth Circuit's interpretive approach to “substantial burden” bears revisiting.