By Melemaikalani Moniz, First Amendment Center Fellow
September 6, 2017
The Standing Rock Sioux Tribe and Cheyenne River Sioux River Tribe are currently attempting to protect their sacred sites from desecration. On July 17th, 2016, the Standing Rock Sioux Tribe, situated in North and South Dakota, filed a complaint in the United States District Court of the District of Columbia, stating that the federal government’s “construction and operation” of the Dakota Access Pipeline “threatens the Tribe’s environmental and economic well-being, and would damage and destroy sites of great historic, religious, and cultural significance to the Tribe.” At the center of the controversy is an ancient Sioux prophecy concerning a black snake that will desecrate sacred sites and poison water, eventually bringing about the earth’s demise. The Standing Rock Sioux Tribe and Cheyenne River Sioux River Tribe believe the Dakota Access Pipeline to be this black snake as the very existence of the Dakota Access Pipeline would render the water in Lake Oahe, an integral part of many of the tribes’ religious rituals and ceremonies, impure.
Although the Standing Rock Sioux Tribe did not allege violations of their First Amendment rights in their initial complaint, the Standing Rock Sioux Tribe later joined the Cheyenne River Sioux Tribe in a Temporary Restraining Order (TRO), filed on February 10th, 2017. The TRO asked the court to stop construction of the Dakota Access Pipeline, asserting violations of the Religious Freedom Restoration Act (RFRA), a piece of legislation that expands upon the Free Exercise Clause of the First Amendment. The Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe lost under RFRA for procedural reasons (the court claimed that these claims were filed too late).
This is not an isolated case. Even if the Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe were able to successfully allege their complaints, they would have probably failed, given that Native American sacred sites are rarely protected by the freedom of religion.
Native American sacred sites are defined differently depending on the tribe. In the United States, the legal term “traditional cultural property” is used to define sacred sites. A traditional cultural property is a property “eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that 1) are rooted in that community’s history and 2) are important in maintaining the continuing cultural identity of the community.” However, embedded in this definition is the understanding that none, other than the indigenous community, can define sacred site.
Vine Deloria, Jr., esteemed scholar and author of God is Red, identified several categories of Native American sacred sites. The first is “the most familiar type of sacredness,” which Deloria says “is the sacredness which we attribute to places and sites that have significance for our society, and from which we receive our personal and social identity.” Deloria equates this to the Gettysburg National Cemetery noting that its sacredness comes after the event. While the Gettysburg National Cemetery may be close to our hearts, its location is not of an event in which something religious occurred. Because nothing religious occurred there, no divine activity is believed to be present at the time that the event occurred. Deloria contrasts this with a deeper more profound sense of sacred land, using the example of the River Jordan and its meaning to the Hebrews, who ostensibly crossed the river into the Holy Land while carrying the Ark of the Covenant. Unlike the Gettysburg National Cemetery, the River Jordan has an added dimension as a location where a manifestation of divine power took place.
If a sacred site is desecrated or rendered inaccessible to practitioners, it may be considered lost. The loss of any sacred site, Native Americans believe, will be “comparable to tiny cracks in a strong building.” Every ritual, ceremony, and action performed by Native Americans is done to respect the natural order and to ensure the continuation of the world. Over time, as more and more sacred sites are lost, the existence of all is threatened as each loss brings closer the eventual demise of the earth. Because “the earth is surely superior in size and power to the mere occasional thoughtless act of one species,” there may not be an initially perceivable crack in the earth’s existence the moment a sacred site is lost. The problem, however, resides in the cumulative loss of sacred sites. The culmination of lost sacred sites begets the loss of the earth.
The First Amendment guarantees two different types of religious freedom. The Establishment Clause ensures that the government cannot advance a specific religion, or heavily restrict religion, while the Free Exercise Clause seeks to protect peoples’ religious beliefs and practices.
The Free Exercise Clause of the First Amendment ensures that every American has the right to believe and practice their own faith (within reason). It is important to note that the concepts of religious belief and religious practice are often separated by the government. While the government usually does not regulate religious beliefs, it can, and often has, regulated religious practices. The Supreme Court has developed two different tests to evaluate claims brought under the Free Exercise Clause: the Sherbert/Yoder test, which favors the plaintiff, and the Smith test, which favors the government.
In the Sherbert/Yoder test, the court evaluates:
The test is named after two cases. The first is Sherbert v. Verner, where a Seventh-Day Adventist was fired because she refused to work on a Saturday, a day her faith considered to be the Sabbath. Her claim for unemployment compensation was denied because she had failed to meet a statutory requirement for unemployment compensation—she had refused “suitable work when offered” without good cause. The Court ruled that this statutory requirement violated the Free Exercise Clause because the government did not have a compelling reason to penalize the woman for her religious practices, and mandated that she be granted an exemption. The second case is Wisconsin v. Yoder, where Amish and Mennonite parents challenged a Wisconsin law requiring all children to attend public schools until age 16; the parents argued that high school attendance was contrary to their religious beliefs and their interests as parents. The Court held that the parents’ interest in the free exercise of their religion under the First Amendment outweighed the state’s interests in ensuring school attendance beyond the eighth grade.
The Smith test was developed in Oregon Employment Division v. Smith, where two Native Americans were fired from their jobs at a drug rehabilitation center after ingesting peyote, a sacrament used in Native American Church religious ceremonies, during a religious ceremony at the Native American Church. Peyote, a Schedule I hallucinogenic, was prohibited under Oregon law. While the Native American respondents alleged that their conduct was protected by the Free Exercise Clause of the First Amendment, the Court evaluated their claim under a two-part test: 1) whether their claim involved a sincere religious belief and 2) whether the action of the government was rationally related to a legitimate state interest. As it’s not all that difficult for the government to pass the Smith test by establishing that its interference with a religious practice is rationally related to some legitimate purpose, the Court ruled against the two Native Americans.
The Sherbert/Yoder test, which requires the government to present a compelling reason for interfering with a religious practice, and prove that it achieved its goal with the least interference possible, is clearly much more difficult for the government to pass. So what determines which test a court will apply to a Free Exercise Clause case? Courts apply the Smith test to laws that are generally applicable and neutral. A generally applicable law is a law that applies equally to everyone, and a neutral law is one that outwardly doesn’t discriminate against gender, race, religion, etc. The Sherbert / Yoder test is applied to laws and regulations that single out religious groups; thus far it has only been applied to a narrow group of cases in which religious observers challenge laws or regulations containing a mechanism for individualized exemptions.
The application and limitations of the tests were defined in Church of the Lukumi – Babalu Aye, Inc. v. City of Hialeah. In Church of Lukumi, the city of Hialeah passed a law to prohibit “unnecessary killing of an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The rights of local Santeria practitioners, who used animal sacrifice during rituals and ceremonies, were burdened by this law, as it prohibited them from exercising their religious beliefs.
However, the law contained exceptions for animal killings under comparable circumstances and for other religious-related purposes, such as kosher slaughter. The law at issue, when evaluated by the Court, was considered to be “not generally applicable or neutral,” as practically speaking, the law would only apply to the Santeria practitioners, the only people in Hialeah who used animal sacrifice during rituals and ceremonies.
The Court, therefore, applied the Sherbert/Yoder test, found that the government had not used the least burdensome means necessary to achieve a compelling purpose, and held for the Santeria practitioners. This differs from Smith, where the Court concluded that the Oregon law prohibiting peyote was generally applicable and neutral on its face, and therefore demanded much less justification from the government for it.
Applying this precedent to the issue of Native American sacred sites, it’s clear that the Free Exercise Clause will not protect them. Government actions that destroy, damage, or limit Native American access to sacred sites will always be viewed as “generally applicable or neutral” on their face, which means that the government will only have to prove that it has some legitimate reason for its actions, regardless of how harmful they might be to Native American religious beliefs and practices.
Native Americans have never been able to successfully bring claims on their own behalf under the Establishment Clause. In Wilson v. Bock, the Hopi and Navajo tribes sued the National Forest Service and the Department of Agriculture for allowing private interests to expand and develop the government- owned Snowbowl Ski area on the San Francisco Peaks in the Coconino National Forest in Arizona. The Navajo believed that artificial development of the San Francisco Peaks would impair the Peaks’ healing power. The Hopis believed that the use of the San Francisco Peaks for commercial purposes would constitute a direct affront to their revered emissaries, which are spiritual beings, and the Creator. Both tribes asserted that the National Forest Service and the Department of Agriculture had violated the Establishment Clause, as well as other constitutional provisions. The court did not analyze the Establishment Clause claim, having already concluded that the other constitutional and legislative claims by the Tribes’ did not entitle them to relief, and ruled in favor of the government.
The government doesn’t always seek to destroy Native American sacred sites; sometimes, federal agencies make efforts to protect them. This can lead to claims from private actors that the government is overstepping its authority, and violating the Establishment Clause by excessively entangling itself in religion.
Federal agencies have been able to successfully protect sacred sites and overcome Establishment Clause challenges by enacting voluntary bans to protect these sites that also advance another secular purpose, and by enacting policies to protect sites that are eligible for listing on the National Register of Historic Places due to the site’s cultural and historic importance.
In Bear Lodge Multiple Use Association v Babbitt, the Wyoming National Park Service enacted a voluntary ban on rock climbing at Devil’s Tower during the month of June. The voluntary ban asked climbers to “voluntarily refrain from climbing during the month of June…” as Devil’s Tower is considered to be a, “‘sacred site’ to indigenous peoples of the northern plains who travel to the monument to perform ‘traditional cultural activities.’” Native Americans perform vision quests, sun dances, as well as individualized prayer offerings and sweat lodge ceremonies at Devil’s Tower during the month of June which requires “solemnity and solitude.” The National Park Service set forth two purposes in enacting the voluntary ban on Devil’s Tower: 1) removing barriers to worship for several American Indian groups, and 2) fostering the preservation of Native American historical, social, and cultural practices “which are necessarily intertwined with their religious practices.” However, because Devil’s Tower had become popular among recreational climbers, climbers were upset that they wouldn’t be able to climb during the most popular month: June.
The climbers argued that it was not within the Secretary of Interior’s power to impose a voluntary ban on climbing because such a rule violated the Establishment Clause. The Secretary of Interior responded to the climbers, asserting that the climbers lacked standing. The District court held for the Secretary of the Interior and the court of appeals affirmed. Because the climbers lacked standing, the court of appeals did not inquire further into the merits of the climbers’ claims. This approach was also followed by the Tenth Circuit in Natural Arch and Bridge Society v. Alston, where the court upheld the National Park Service’s voluntary ban on visitors approaching the Rainbow Bridge Monument, unless those visitors were Native Americans or Native Americans engaging in religious ceremonies. Once again, the court found that the plaintiffs had no standing. It was also followed by the Tenth Circuit in Wyoming Sawmills, Inc. v. United States Forest Service, et al.. There, the court found that a timber company had no standing when it alleged that the National Park service had violated the Establishment Clause with its historic preservation plan for the Medicine Wheel National Historic Landmark.
In Cholla Ready Mix, Inc. v. Civish, the dispute revolved around new commercial source regulations issued by the Arizona Department of Transportation. The new commercial source regulation pertained to companies that wanted to provide aggregate materials for state highway construction projects, who would need to apply for commercial source numbers. Each company applying for a commercial source number was required to submit environmental assessments that considered, among other things, adverse effects on places eligible for listing on the National Register Historic Places (“NRHP”). Woodruff Butte was declared eligible for listing on the NHRP, which led to the Arizona Department of Transportation’s denial of Cholla Ready Mix, Inc.’s application for a new commercial source number. This meant that Cholla could not aggregate materials for state highway construction projects but remained free to sells its materials in the private market. Cholla sued the government in District Court alleging the Establishment Clause, federal civil rights law, and the Arizona Constitution. The Supreme Court of Arizona found that the Arizona Department of Transportation had not violated the Establishment Clause, because their regulations had a secular purpose–carrying out state construction projects in a manner that does not harm a site of religious, historical, and cultural importance to several Native American groups and the nation as a whole. The court noted that Native American sacred sites are not solely religious in character or purpose but rather are ethnic and cultural in character as well. “In conclusion,” the court stated, “the Establishment Clause does not bar the government from protecting a historically and culturally important site simply because the site’s importance derives at least in part from its sacredness to certain groups.” The Ninth Circuit followed this reasoning in Access Fund v. United States Department of Agriculture, upholding a National Forest Service ban on the “the recreational activity of rock climbing at Cave Rock,” a site of important mythological events central to the Washoe tribe’s faith. In its argument, the National Park Service emphasized that Cave Rock, “has significant cultural and historical significance that make it eligible to the National Register of Historic Places. Its significance was not based on ‘Washoe religious doctrine’ but its significance was based on the secularly-derived historic and ethnographic record.”
Preceding Smith, the court evaluated a Free Exercise Clause claim under the First Amendment in Lyng v. Northwest Indian Cemetery Protective Association. The appellants’ in Lyng were Native Americans seeking to protect a national forest traditionally used by Native Americans for religious purposes. While preparing to build a road through the forest, the National Forest Service commissioned a study of the Chimney Rock section of the Six Rivers National Forest, and concluded that “constructing a road along any of the available routes ‘would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples.’” The National Forest Service chose to go ahead with the construction anyway.
The claim in Lyng differs from the claim in Smith because the appellants also alleged a violation of their American Indian Religious Freedom Act claims. The American Indian Religious Freedom Act of 1978 sought to provide for the accommodation of sacred sites on federal lands. The purpose of the Act was set forth in three parts: 1) to recognize the importance of Native religions to the identity of Native Americans, 2) to prevent any religious infringements that could result from insensitivity in enforcing federal policies and regulations, and 3) to protect Native American rights to sacred land and sites, while also protecting Natives from insensitive interference with the lands. However, the Act had three limitations that prevented it from effecting change: 1) the Act did not create legal rights of action or allow for substantive relief arising from agency violations, 2) the Act did not prohibit agencies from making choices that could harm sacred sites or religious practices, and 3) the Act is dependent on federal administrative goodwill to be implemented. Because there is no enforcement mechanism for the American Indian Religious Freedom Act, the legislation is effectively useless.
Unsurprisingly, the Court in Lyng ruled in favor of the government, concluding that the affected Native Americans were not being coerced by the government’s action to violate their beliefs and that the governmental action did not penalize religious activity by denying anyone an equal share of the rights, benefits, and privileges enjoyed by others. The Court held that 1) the American Indian Religious Freedom Act did not create any cause of action or any judicially enforceable individual rights and 2) the construction of the road through the Native Americans sacred site was constitutional and in accordance with the Free Exercise Clause of the First Amendment.
The Religious Freedom and Restoration Act (RFRA) was enacted by congress in response to Oregon Employment Division v. Smith, in order to guarantee broader First Amendment protection to Native Americans. The purpose of RFRA was to 1) restore the compelling interest test of Sherbert / Yoder, 2) to guarantee its application in all cases where the free exercise of religion is substantially burdened, and 3) to provide a claim or defense to persons whose religious exercise is substantially burdened by the government. The Court later limited RFRA by holding that it did not apply to states. Because RFRA does not apply to the states, all cases brought under RFRA are federal claims alleging a constitutional violation.
In Navajo Nation v. United States Forest Service (Navajo Nation I), a decision made many years after Wilson v. Block, the United States Forest Service approved a proposed expansion of the Arizona Snowbowl facility, a ski area located atop the San Francisco Peaks in northern Arizona. The San Francisco Peaks are considered to be of religious significance to numerous Indian tribes of the American Southwest, have been identified as eligible for inclusion in the National Register of Historic Places, and are “traditional cultural property.” The ski area is the highest and most religiously significant of the San Francisco Peaks. Part of the expansion for the facility would involve making artificial snow from recycled sewage effluent. Numerous Indian tribes, their members, and environmental organizations brought actions under RFRA, the National Environmental Policy Act, and the National Historic Preservation Act to challenge the Forest Service’s decision to authorize upgrades to the ski area facility
The court of appeals stated that to establish a prima facie case under RFRA, a plaintiff must show that the government’s proposed action imposes a substantial burden on the plaintiff’s ability to practice freely his or her religion. The burden must be considered more than an inconvenience that prevents the plaintiff from engaging in religious conduct or having a religious experience. The court evaluated whether or not the government’s proposed action imposed a substantial burden on the plaintiff’s ability to practice their religion freely by looking through the record to establish the religious exercises of the tribes involved.
The court concluded that while sewage effluent on the San Francisco Peaks would impose a burden on the religious exercise of all tribes involved, the burden would fall most heavily on the Navajo and the Hopi because the San Francisco Peaks are considered to be the most sacred by both tribes. Their religions have revolved around the Peaks for centuries as their religious practices require pure natural resources from the Peaks. The treated sewage effluent placed atop the Peaks would, in their view, contaminate the natural resources throughout the Peaks.
The contamination of the natural resources by the treated sewage effluent would prevent Navajo practitioners from making or rejuvenating medicine bundles, from making medicine, and from performing rituals and healing ceremonies. The contamination of the natural resources by the treated sewage effluent would undermine the entire system of belief for Hopi practitioners as well as the associated practices of song, worship, and prayer that depend on the purity of the Peaks, which is the source of rain, their livelihoods, and the home of revered spirits.
The court of appeals held that the tribes had shown that the use of treated sewage effluent on the Peaks would impose a substantial burden on their exercise of religion. Because the Navajo and Hopi were substantially burdened, the court concluded that they need not inquire further into the burdens imposed upon other tribes involved.
After the ruling, the Court of Appeals reheard the claim en banc and reversed the initial decision. In Navajo Nation v. United States Forest Service (Navajo Nation II), the court of appeals acknowledged that artificial snowmaking would desecrate the Peaks from the subjective viewpoint of the Indian claimants, but held that such damaged spiritual feelings are insufficient to substantially burden their free exercise rights under RFRA. The tribes’ free exercise of religion was not substantially burdened because the proposed snowmaking would neither force the tribes to choose between following the tenets of their religion and receiving a governmental benefit nor would it coerce them to act contrary to their religion under the threat of civil or criminal sanctions. The court of appeals held for the United States Forest Service. The United States Supreme Court declined to review the case.
Here are some possibilities:
With 562 federally recognized tribes in the United States and Canada, Native Americans are culturally, ethnically, and linguistically diverse to an extent that is seldom recognized. Nevertheless, almost all Native Americans share one core belief that shapes each tribe culturally and spiritually: a belief that people and nature have a familial relationship. For many Native American tribes, culture, religion, and the land itself are intertwined.
In the Judeo – Christian traditions that are predominant in the United States, culture and religion are much easier to separate. Judeo-Christian norms mandate worship services to be held on the Sabbath, a day of peace, rest, and union in a sacred space. Individuals retain the opportunity to seek out a sacred space, like a church, mosque, or temple, to cultivate their specific religious or spiritual beliefs. But in most Native Americans religious traditions, their sacred space is not in a church, or a temple, or a mosque but on the very land in which Native Americans come from. Because many non- natives struggle to grasp this definitive difference, courts may be reluctant to protect sites that are sacred to Native Americans.
Native American sacred sites are usually located on land owned by the federal government. In Sequoyah v. Tennessee Valley Authority, Cherokees challenged a federal funded development of Tellico Dam on the Little Tennessee River Valley under the Free Exercise Clause and the American Indian Religious Freedom Act. The Little Tennessee River valley was located within the Cherokee Nation’s traditional territory and was considered by the Cherokee to be the center of Cherokee life. The Tennessee River Valley was considered to be the primordial reality investing life – enhancing energy, which sustained a meaningful existence for the human community it nurtured. If the Tennessee River Valley were to be destroyed, many Cherokee believed its destruction would mean the end of the Cherokee people.
Ruling on the First Amendment issues asserted by the Cherokee people, the Sixth Circuit concluded that the Free Exercise Clause required a showing of government coercion of actions contrary to religious beliefs. The court considered that the federal government uses the land it owns for many purposes that limit or deny public access to the property. However, the Cherokees had no independent legal right of access to the land and were therefore unable to impose limits upon land owned by the government. Because the Free Exercise Clause is not a license in itself to enter a property, government – owned or otherwise, the Cherokee people had not asserted an adequate claim under the Free Exercise Clause of the First Amendment.
The Sixth Circuit held ownership of a property by the federal government to be one factor to be considered when evaluating free exercise claims. The Sixth Circuit chose to not question the sincerity of the tribe’s beliefs or practices but concluded that, most people to a greater or lesser extent revere the places where their ancestors are buried. The tribe’s attachment to the Tennessee Valley depended more upon a personal preference as opposed to a conviction shared by an organized group. Therefore, the court held that the Tennessee River Valley was not central to the religion of the Cherokee people. The Cherokee people’s free exercise claim, under the First Amendment, failed because the government’s interest in the unrestricted use of their federal lands outweighed their constitutional interest.
In Badoni v. Higginson, Navajo religious practitioners asserted violations of their First Amendment rights under the Free Exercise Clause at the Rainbow Bridge National Monument. The Navajos argued that the flooding of a lake, Lake Powell, was drowning their gods while tourist were disturbing prayer offerings, defacing canyon walls, and intruding on ceremonies with their noise. The court, instead of analyzing the Navajo’s suit under the Free Exercise Clause, chose to first analyze the property rights of the Navajo.
While the Rainbow Bridge National Monument was within the boundaries of the Navajo Reservation, the court concluded that the Rainbow Bridge National Monument was owned by the government and managed by the National Park Service because it was established by President Taft. The court stated that, “any aboriginal proprietary interest that the Navajos may have held in this land would have been extinguished by the entry of the white man in earlier years.” The ownership rights of the government were determinative of the First Amendment assertion by the Navajo. The court held that the Navajo had no property interest in the land and their claim does not come within a country mile of any cognizable legal theory upon which relief can be granted. The Navajo failed when they attempted to protect their sacred site under the First Amendment because the government’s interest as property owners was determinative of the Cherokee’s constitutional interests.