Federal Court: Destruction of Sacred Tribal Ground Not a “Substantial Burden” on Religious Exercise Under RFRA

Written by Don Byrd

A federal district court in Oregon has dismissed religious freedom claims brought by Yakama Nation and the Confederated Tribes of Grande Ronde arising out of the destruction of sacred burial ground by federal entities in widening a stretch of highway out of safety concerns.

The plaintiffs tribal elders argued that because the damage and construction of the highway renders unusable the site, which they consider of great religious significance, the government violated their religious free exercise rights under the federal Religious Freedom Restoration Act (RFRA). The judge, however, rejected that argument and ruled that the destruction of the site did not constitute a “substantial burden” on religious free exercise, as required to trigger protections under RFRA.

The court relied on a 9th Circuit case (Navajo Nation) in which tribes argued the introduction of wastewater onto land they considered sacred violated their rights of free exercise under the federal law. That case, the court ruled, establishes that there must be some element of governmental coercion or compulsion to a claim that one’s religious free exercise has been substantially burdened under RFRA.

Here is an excerpt from the opinion:

[T]his court must similarly conclude that plaintiffs have failed to establish a prima facie case that their right to exercise religion has been substantially burdened. As in … Navajo Nation, plaintiffs contend that the sacred site at issue, which is located on federal land, has been desecrated and destroyed. Yet, as in those cases, plaintiffs have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs. Without these critical elements, plaintiffs cannot establish a substantial burden under the RFRA.

[Plaintiffs] are still able to access the site, and there is no evidence that they will be cited for trespass or suffer any government-imposed penalty for doing so. Thus, while plaintiffs may raise important questions whether the decisions regarding the site were culturally sensitive or the least destructive choice among various options, those factors do not establish a substantial burden under the RFRA.

The federal RFRA offers claimants a pathway to relief from laws or government action that unintentionally poses a substantial burden to their religious free exercise. But as this and other cases demonstrate, that is no easy legal threshold to meet. And even if a plaintiff does, the government then has the opportunity to show that the burden is necessary to further a compelling interest of the state.

This balancing arrangement offers a means of adjudicating collisions between the interests of the state and the exercise of religion. It does not ensure that one side or the other always wins – RFRA is not a trump card for religious objectors. But it does create a legal framework that attends to the important concerns on both sides.

For more on RFRA, see the Baptist Joint Committee’s RFRA Resource Page.