As I finish writing a book manuscript about the US Supreme Court 1988 case Lyng v. Northwest Indian Cemetery Protective Association, I am reminded of my first encounter with Kathleen Sands’s work. I was a doctoral student then, and what has since become an obsession with the Lyng case was just beginning to grow in me. I came across this case and was immediately intrigued because of the strong connections it had demonstrated between religion and land. See, in Israel/Palestine, where I grew up, religion and land are much more obviously connected than they are in the US, but the Lyng case was proving to me that things are not so different here. However, the vast legal scholarship I could find on Lyng was focused on First Amendment analyses and did not seem to care too much about the question of sacred land and its relation to private property. Kathleen Sands cared exactly about this connection, and about much more, and it wasn’t surprising that it was a religious studies scholar who has provided the most interesting reading of this case.
At the center of Lyng is an area of the Six Rivers National Forest of northwest California, known to the Yurok, Karuk, and Tolowa Indigenous nations as the High Country. The Forest Service had intended to develop the area—cut down a lot of trees and complete the paving of a road that would support the logging industry but would run right through the sacred land. The Yurok, Karuk, and Tolowa protested this development plan, arguing that it would irreparably damage their religious practice in the area, and invoking the Free Exercise Clause of the First Amendment and the American Indian Religious Freedom Act. Having won their case in two lower courts, the Yurok, Karuk, and Tolowa finally lost when the Supreme Court preferred to protect the government’s property rights in the area even if it infringes upon the free exercise rights of the three Indigenous nations.
For Sands, this means that religion and property are at odds in this and other Native American–related legal cases. As she puts it, the Native American plaintiffs could be understood to claim that “religious beliefs could transform land from private property under state sovereignty into something that could limit the sovereignty of the state and that could not be owned by anyone” (164). In other words, the Yurok, Karuk, and Tolowa were trying to transform private property into sacred land, and the Court was not going to help them to accomplish this project. Sands explains this stand taken by the Court by contextualizing the Lyng case within a longer process of secularization, that has started in seventeenth-century Europe, when religion and property were privatized at the same time (165–68).
I found Sands’s reading of Lyng inspiring and nuanced. However, it is in her chapter on religion and land in America’s Religious wars, the book that is at the center of this symposium, that she puts the matter most clearly and persuasively: whereas “when we struggle about religion, we may think we’re only fighting about worldviews,” it is “when people struggle over land [that] we realize that we’re fighting about the real world” (173).
America’s Religious Wars: The Embattled Heart of Our Public Life (Yale University Press, 2019) is a beautifully written book that brings religious studies insight into legal and political questions, about citizenship and land, about education and science, about race and sexuality. In a nutshell, what Sands argues is that public debates that seem plainly about religion are actually about competing social ethics—about freedom, equality, community, limited government, dignity, and distributive justice. The category of religion, into which we so often force these issues, is not always fitting. In fact, it is often too limited, and as Sands has argued in her article about Lyng, it “regularly dis-serves” (164) the communities she writes about in this book.
Because of the interdisciplinary nature of this work, we brought together legal scholars and humanities scholars to discuss it here, in conversation with the author. Michael McNally (Religious Studies, Carleton College) focuses his essay on America’s Religious Wars on the book’s fourth chapter, “Nicholas Black Elk and Theodor Roosevelt: Religion and the Fight for Land.” As McNally writes, there is much to admire about Sands’s argument and her clarity of vision. He also asks to push her to recognize the ways in which Native communities have used religion strategically (in other words, the category of religion does not always dis-serve them). Leslie Griffin (Law, University of Nevada) asks the opposite of Sands: to recognize that Native American land cases are about sovereignty, not about religion, and therefore, religion is a strategy that will always fail Native communities in courts. Focusing her reading of the history of religious freedom jurisprudence and legislation on three of this history’s main landmarks: Sherbert v. Verner, Employment Division v. Smith, and the Religious Freedom Restoration Act, Griffin argues that “the most important lesson of the wars of religion is that everyone must follow the same law, and that those laws must not be religion-based.”
Corey D. B. Walker (Humanities, Wake Forest University) focuses on the foundations, or beginnings, of “America’s Religious Wars.” He asks Sands to engage—alongside Edward Said, Charles Long, and Sylvia Wynter—in a process of “demythologizing religion, America, and democracy and thinking through the creation and evolution of ‘we’ across space and time.” Perhaps such demythologization is what’s needed for the American communities Sands writes about to live here together. Finally, Linda Greenhouse (Law, Yale; New York Times) reads the book’s mission thus: “to show how the religious conflicts at the embattled heart of our public life . . . transcend law and elude law’s solution.” Sands’s project is “rich and complex,” Greenhouse tells us, as she is bringing law back into the center of the story of religious freedom.
At the outset of America’s Religious Wars, Kathleen Sands presents us with a thought experiment: eavesdropping on an imaginary conversation about religion between three imaginary people sitting next to each other in the row behind us readers on an imaginary flight, we need to guess what these people’s political views are, based on their expressed views about religion. The symposium presented here in the coming weeks sits next to each other scholars of law and religion on this imaginary flight (it’s safer that way; no one can catch COVID on an imaginary flight). The result is a fascinating conversation about law, religion, and politics, and also about disciplinary boundaries and how to break them.