As an attorney having now invested forty years representing Indigenous people’s claims to protecting sacred places I bring to this work a healthy albeit jaundiced eye toward the trappings and failings of the dominant society’s legal and political institutions. The judiciary has, with rare exception such as People v. Woody (1964), proven that it is first and foremost a protectorate of the dominant society and of corporate, capitalist interests. In this short paper, I’ll attempt briefly to outline the contours of where judicial missteps have occurred relating to Indigenous religion, despite the early (in the modern era) and honorable attempt by Indigenous advocates such as Vine Deloria, Suzan Harjo, and Walter Echo Hawk, working through the Congress in 1978, to enact the American Indian Religious Freedom Act to chart a more equitable course.

More recently, Indigenous peoples and their allies are investigating new strategies to advance and protect interests in sacred landscapes. Notions of cultural and religious or Indigenous sovereignty are a means to break out of legal strictures that have hewed too closely to now outmoded legal doctrines such as plenary power and the doctrine of discovery. So, too, there is the work of Indigenous warriors in the now-decade old United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to devise standards for protecting cultural and religious resources under international law. This work is quite laudable, and essential, though limited. Be that as it may, contemporary Indigenous peoples engaging in efforts to stand in the way of the political and corporate juggernaut have few alternatives other than resort to existing federal laws and the federal judiciary. For that reason, I’ll focus here on where the courts went wrong and where I see possible – albeit challenging – opportunities for returning to a just legal framework.

The Religious Freedom Restoration Act of 1993 (RFRA) was intended by Congress to correct the misguided Smith, and arguably, Lyng decisions of the Supreme Court. RFRA’s purpose was to reinstitute the balancing test under which government action substantially burdening religious practices had to have a compelling purpose, and use the least restrictive means to achieve that purpose. The Supreme Court’s refusal nearly a decade ago to overturn the Ninth Circuit’s decision in Snowbowl continued the practice of excluding Indigenous religions intimately tied to sacred landscapes from protection under federal law. Some might argue that after Lyng and Snowbowl there is still a means by which Indigenous peoples can prevail, but to date no one has succeeded.

The evidentiary standard requires proof that the government’s action either forced individuals to choose between following the tenets of their religion and receiving a governmental benefit or coerced them by threatening civil or criminal sanctions to act contrary to their religious beliefs. Snowbowl wrongfully imported that Lyng standard into RFRA jurisprudence, and the Supreme Court let it stand. While “certiorari denied” doesn’t mean that the Snowbowl standard is now the law of the land, it sent a strong and chilling message to Indigenous tribes and peoples across the land. Just as the free exercise clause of the First Amendment provides no meaningful protection after Lyng, for all intents and purposes neither does RFRA. Indigenous peoples were able to enact in 1994 amendments to the American Indian Religious Freedom Act (AIRFA) to provide express protection for the possession and use of peyote, after being shut out of the majoritarian Christian RFRA coalition. However, repeated federal legislative efforts to protect sacred places and landscapes commencing right after Lyng were turned away, most recently as part of the 1994 peyote amendment coalition. So, where do Indigenous peoples and tribes turn now, beyond the alternative approaches proposed by my esteemed colleagues on this symposium?

Federally recognized Indian tribes maintain a government-to-government relationship with the United States established under treaties, executive orders, statutes and other laws. These individual Indian tribes share a common interest in protecting sacred places, notably sacred places located on public lands, within their aboriginal territories, in preserving the rights of their tribal members to freely exercise their religious practices, thereby ensuring the survival of tribal identity and culture for future generations. Conflicts over protection of Indigenous sacred places on the public domain are not new, and will not go away. At some point a meaningful framework within which to address these conflicts must be developed, if not in the judicial system then in Congress. Amending RFRA to protect sacred places seems a remote possibility in the current political and legal climate, but I’ve no doubt that Indigenous advocates will continue to mount these efforts.

Articulating what an objective evidentiary standard for meaningful accommodation of sacred sites on public lands requires first what Vine Deloria, Jr. described as “a willingness on the part of non-Indians and the courts to entertain different ideas about the nature of religion.” (271) During the original AIRFA deliberations in 1978, Congressman Morris Udall of Arizona eloquently framed the challenge thusly: “It is stating the obvious to say that this country was the Indians’ long before it was ours.” Acknowledging that for many tribes, the land is filled with sacred sites, in the same way that “our” religions have their “Jerusalems, Mount Calvarys, Vaticans, and Meccas,” he asked “Can we not understand that?”

The Historical Overview section of the AIRFA Report (August 1979) provides an excellent historic framework within which to understand Indigenous peoples’ intimate religious connection to sacred landscapes, explaining that each American Indian ceremony “is given for a specific purpose and must be performed at the place and in the manner and […] at the time designated.” These ceremonies, the report stresses, “must be performed continuously or great harm and destruction will come to the people.”

Justice O’Connor’s admonition in Lyng that the government is free to do what it will with “its own land” sticks in the craw of Indigenous peoples. Abby Abinanti powerfully called it “the moral equivalent of spitting in my face.” (21) The treaties, executive orders, and other acts of Congress that rendered the High Country, the San Francisco Peaks, and a multitude of other sacred places on the landscape part of the public domain did not diminish the importance of these sacred lands to the Indigenous peoples and tribes for whom the spiritual connection traces back millennia. It is not the “choice” of these people that these holy places are not always neatly found on reservations set aside under federal law for their use. They cannot simply pack up their religious association with sacred landscapes and go elsewhere to worship; it is not within their power to do so.

Sacred places such as the High Country in Lyng and the San Francisco Peaks in Snowbowl also have a direct nexus with tribal identity. As Congress recognized in AIRFA, “the religious practices of the American Indian […] are an integral part of their culture, tradition and heritage, because such practices form the basis of Indian identity and value systems.” Where sacred geography may constitute the locus of creation of a people, the home of the spirits that protect those people, or the sole location at which crucial religious ceremonies may be performed or medicines gathered, the integrity of those sites directly sustains the identity of the people who hold them sacred, as Brian Brown noted.

Substantially altering the physical integrity of a sacred place compromises its spiritual integrity, which in turn may injure the integrity of a people, their religion, and their culture. If the physical alteration of a sacred place prevents practitioners from carrying out ceremonial practices at that place, they will not be able to pass on those ceremonial practices to the next generation, and those ceremonial practices will be lost. The burden on religion is borne not just by the present generation, but also by future generations who will not even have the opportunity to learn the rituals and pass them on.

In this context, then, it’s plain to see how the Lyng-Snowbowl burden standard that imposes an evidentiary requirement that Indigenous peoples either be “forced […] to choose between following the tenets of their religion and receiving a governmental benefit or coerced […] by threatening civil or criminal sanctions to act contrary to their religious beliefs”makes absolutely no sense.

Congress did not intend the surreal result that there is no burden on Indigenous religious practices caused by incompatible uses which will satisfy the threshold “substantial burden” requirement under RFRA. Congress intended a fair balancing of respective religious and governmental interests. There is nothing in the plain language of RFRA which supports a contrary interpretation, an interpretation that, in effect, reads Indigenous religions out of RFRA.

But let’s move briefly on to pragmatic solutions, and to a closer look at the concept of accommodation. Justice O’Connor, despite effectively trashing Indigenous claims to sacred lands in Lyng, gratuitously opined that that result “need not and should not discourage [the government] from accommodating religious practices like those engaged in by the Indian respondents.” But now that the Court has foreclosed a clear and equitable resolution of this issue, for the time being, with the denial of review in Snowbowl, where is the incentive to accommodate on the part of federal land managers? A functional, objective and straightforward “burden” standard would have lessened the number of RFRA claims by clarifying for federal land managers and potential Indigenous tribal litigants the permissible bounds of accommodation, without opening a Pandora’s Box of specious claims. Federal land management decisions under the Snowbowl standard will not provide a level playing field for Indigenous people, and will severely impact the spiritual lives of tribal members, now and in the future. Where management decisions regarding recreation, tourism, natural resource development, and other potential uses of public lands results in the alteration or destruction of sacred sites, it becomes an intrusive invasion of Indigenous religion and tribal identity. A single ill-informed decision by a federal land manager may severely erode or eliminate the ability of Indigenous peoples to engage in religious practices, with no legal recourse. Such a decision may ultimately threaten the survival of an entire Indian tribe’s traditional religion and spiritual identity.

There is some hope, albeit small, in the decision of the federal district court of Oklahoma in Comanche Nation v. United States. In Comanche Nation the tribe obtained a preliminary injunction under RFRA against the U.S. Army’s construction of a large training support center at Fort Sill that blocked the Nation’s cultural and religious activities on and adjacent to Medicine Bluffs, a natural landform which has been listed on the National Register of Historic Sites since 1974 because of its historical importance, its role in the founding of Fort Sill, and its religious and cultural significance to Native Americans. The court refused to follow the Lyng-Snowbowl coercion standard as it had not been adopted by the Tenth Circuit. That court followed RFRA precedent which holds that a governmental action which substantially burdens a religious exercise is one which must “significantly inhibit or constrain conduct or expression” or “deny reasonable opportunities to engage in” religious activities. A settlement was reached and Comanche Nation was not appealed to the Tenth Circuit. Only time will determine whether a split in the federal circuits arises of sufficient import to warrant Supreme Court review.

The settlement achieved in Comanche Nation was the direct result of a just and equitable application of RFRA. Prior to the Ninth Circuit’s decision in Snowbowl, the negotiations between federal land managers and American Indian tribes were conducted with RFRA and its requirements in mind. Within this framework, the vast majority of land-use conflicts have been resolved long before the need to file legal actions in court. The meaningful accommodation achieved at the Medicine Wheel National Historic Landmark in the Bighorn National Forest in Wyoming provides a specific example of a workable solution between federal land managers and various tribes and American Indian religious practitioners who hold sacred the Medicine Wheel and Medicine Mountain. These accommodations were mutually agreeable to the American Indian religious interests, to the Big Horn County Commissioners who were concerned about access to commodity, recreational, and tourist uses, and to the U.S. Forest Service charged with management of the area. Other success stories include the Devil’s Tower National Monument voluntary climbing ban in June of each year, and the Rainbow Bridge National Monument’s interpretative signage and road closures for American Indian sacred ceremonies.

Under RFRA, Congress intended that Indigenous peoples have access to the courts when, despite proposed agency accommodations, tribes and religious practitioners are able to produce evidence that there is still a substantial burden on religious practice. It is in these instances that RFRA requires that a balancing of religious and governmental interests occur, and that the governmental interests be required to be compelling and tailored to be the least restrictive on religious values and practices to be upheld. Snowbowl decidedly tipped this balance against accommodation at the federal agency level and upended the scales when the parties reach federal court. Abinanti’s A Letter to Justice O’Connor uses the term “equitable accommodation,” which is certainly an apt description of what should have been the result following the enactment of RFRA.

If Mount Calvary, the Holy Mosque in Mecca, or the Wailing Wall in Jerusalem were located instead on public lands in the United States, would they be denied protection under RFRA in the same manner as the San Francisco Peaks or the High Country? Certainly, Congress or the courts would find the means necessary to protect these holy sites, to ensure that Christians, Jews, Muslims, Hindus, Buddhists and others could meaningfully pray and observe their rituals without fear of disturbance or destruction of the integrity of the place. Indigenous peoples are simply seeking equitable treatment for their religions and similar protection for their sacred places alongside the world’s other great religions. Congress determined that the RFRA test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

Only by returning to a sensible balance will Indigenous peoples and tribes, private development interests, and the federal government have any incentive to negotiate just and equitable accommodations, when faced with the uncertainty, difficulty, and expense of pursuing litigation under RFRA.

Conclusion

If to have religious freedom you must first have religion, and if religion is as problematic a moniker for Native claims, it is also true that Native nations and their advocates are less interested in whether religious freedom is conceptually bankrupt or not. From a pragmatic perspective, religious freedom is not perforce destined to fail, notwithstanding a pattern of failures thus far in court. And too much focus on court cases can skew our sense of how claims made in the register of religion can be useful in courts of public opinion, in consultation regimes, and in the climate shaping administrative decision-making.

At the end of the day this is not about the elegance of any given discourse for making claims or even about high profile victories in court – or proving that Native peoples too have won religious freedom in some kind of discursive contest – except insofar as conditions are legally and politically created that are conducive to acceptable negotiated agreements that enable Native peoples to fulfill sacred obligations in their own way, and quietly. It is not even primarily about high profile victories in court – of proving that they too have won religious freedom in some kind of discursive battle – though that can help foster better conditions for those negotiated agreements. For the very reasons that religious freedom discourse is powerful, arguments made in its register, especially as they stretch the indeterminacy of religion in the directions of collective rights, should appropriately be on the table in Native peoples’ efforts to protect what is sacred to them.