Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue

*University of Virginia School of Law, J.D. expected 2024. This Note grew out of a class I took in my second year, Constitutional Law: Religious Liberty with Professor Micah Schwartzman. Many thanks to Professor Schwartzman for guiding my research and writing for this Note. I would also like to thank Professors Cale Jaffe and Holly Clement for their thoughtful suggestions. Finally, I am very grateful to the many members of the Virginia Law Review who worked on this Note. I would especially like to thank Liam Zeya, who consistently provided very helpful feedback and encouragement throughout the editing process.Show More

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.

Next, this Note delves into three preexisting theories from like-minded critics of Lyng and analyzes the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test that modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.

Introduction

The Supreme Court’s treatment of Indigenous sacred sites in the free exercise realm¹ 1.U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”).Show More is fatal both in theory and in fact. In its most recent decision in Lyng v. Northwest Cemetery Protective Ass’n,² 2.485 U.S. 439 (1988).Show More the Court authorized the government to proceed with a construction project that would damage a Native American³ 3.I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note.Show More sacred site on federal land.⁴ 4.Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449.Show More In its opinion, the Court briefly acknowledged that Native American religious practices are “inextricably bound up with the unique features of the . . . area.”⁵ 5.Id. at 451.Show More But in giving the government the green light to bulldoze a sacred site on federal land, the Court failed to meaningfully consider inherent distinctions between Native American religions and their Western counterparts. This Note argues that the legal standard established in Lyng kills most sacred site claims in the first instance because it fails to account for unique aspects of Native American sacred sites. In response, this Note proposes a modification to the legal standard to correct this problem and put Native Americans’ religious claims over sacred sites on equal footing with those of other religious claimants.

When contemplating Native American free exercise issues, it is important to understand that each Native American religion incorporates its own values, beliefs, and traditions into its practice.⁶ 6.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023).Show More Yet there are commonalities across these religions, one of which is the importance of sacred sites.⁷ 7.See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”).Show More Sacred sites are specific locations with unique religious and cultural significance.⁸ 8.The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023).Show More Their existence is not exclusive to Native American religions, but the term’s connotation in such religions is unlike that embraced by most other religious groups.⁹ 9.Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL].Show More For instance, Jerusalem is considered a sacred site in Christianity largely because of its rich history and centrality to the story of Jesus Christ’s death and salvation.¹⁰ 10.What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N].Show More In contrast to Christianity and other major religions, the importance of sacred sites to Native American religions centers not around history or traditions, but rather, the individual spirits ever-present in sacred lands.¹¹ 11.King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”).Show More This stems from the notion that Native American religions do not distinguish between the real world and the supernatural—the two dimensions are inherently intertwined.¹² 12.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023).Show More Accordingly, each sacred site is markedly different from the next, possessing its own distinct spiritual beings and religious qualities.¹³ 13.See King, supra note 9.Show More

Due to their incomparable religious worth, sacred sites are typically reserved for certain religious practices such as ceremonies and pilgrimages,¹⁴ 14.Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF].Show More or left undisturbed entirely so as to not “disrupt[] the lives of deities” therein.¹⁵ 15.Id.Show More Altering or destroying an Indigenous sacred site strips it of its spiritual essence,¹⁶ 16.See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”).Show More signifying to worshippers that their “prayers will not be heard”¹⁷ 17.Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)).Show More or their “ceremonies will be ineffective to prevent evil and disease,”¹⁸ 18.Id.Show More among other potentially devastating impacts. Thus, preservation of sacred sites is essential to Native Americans’ ability to practice their respective religions, and irreparably damaging a sacred site can functionally eliminate a Native American religious group’s ability to freely exercise their religion.¹⁹ 19.See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”).Show More

Despite the potentially catastrophic consequences of destroying sacred sites on religious freedom, free exercise claims seeking the protection of Indigenous sacred sites have seldom succeeded following the Supreme Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Ass’n.²⁰ 20.485 U.S. 439 (1988).Show More In Lyng, Native American tribes brought a claim that the government’s construction project on a sacred site located on federally owned land violated their free exercise rights guaranteed by the First Amendment.²¹ 21.Id. at 443.Show More The majority struck down this challenge, rejecting the claimants’ argument that the government imposed a substantial burden on their free exercise rights since they were not “coerced by the Government’s action into violating their religious beliefs.”²² 22.Id. at 449.Show More Rather, it held that an individual has only been coerced into violating their religious beliefs if the government threatened to impose penalties for noncompliance.²³ 23.Id. at 440.Show More

Since Lyng, courts have repeatedly struck down free exercise claims involving Native American sacred sites,²⁴ 24.See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site).Show More reaffirming the notion that the government has imposed a substantial burden on a Native American party’s free exercise rights concerning a sacred site only when the government action amounts to an affirmative act of coercion under threat of sanctions.²⁵ 25.Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions).Show More Although Congress subsequently passed multiple laws aimed at protecting religious freedom,²⁶ 26.See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”).Show More including one directed specifically at Native American religious liberty,²⁷ 27.See American Indian Religious Freedom Act, 42 U.S.C. § 1996.Show More these statutes have also failed to create a judicially enforceable cause of action.²⁸ 28.See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”).Show More

This Note argues for a change in the Supreme Court’s characterization and treatment of sacred sites in free exercise cases. Part I provides a background of free exercise jurisprudence and legislation pertaining to Native American sacred sites. It presents an overview of the substantial burden test established originally in Sherbert v. Verner²⁹ 29.374 U.S. 398 (1963).Show More and Wisconsin v. Yoder³⁰ 30.406 U.S. 205 (1972).Show More and adopted in Lyng and its progeny, followed by an analysis of failed statutory attempts to protect Native American religious liberty. Part I also highlights why Lyng’s failure to protect free exercise rights calls for a reformulation of sacred site claims within the contours of the Sherbert/Yoder test. Part II provides a synopsis of existing proposed alternatives to the Lyng majority’s substantial burden test for sacred site free exercise claims. It analyzes and critiques theories posited by Justice Brennan in the Lyng dissent, Professor Alex Tallchief Skibine, and Professors Stephanie Barclay and Michalyn Steele. Part III synthesizes the benefits and drawbacks of the approaches laid out in Part II. Building off this analysis, it offers a new test which broadens the definition of “coercion” for land-based claims within the substantial burden framework. This test will put Native American sacred site claims on equal footing with other religious claims but remains sufficiently narrowly tailored to address concerns of overexpanding free exercise rights generally.

1.  U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”). ↑
2.  485 U.S. 439 (1988). ↑
3.  I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note. ↑
4.  Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449. ↑
5.  Id. at 451. ↑
6.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023). ↑
7.  See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”). ↑
8.  The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023). ↑
9.  Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL]. ↑
10.  What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N]. ↑
11.  King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”). ↑
12.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023). ↑
13.  See King, supra note 9. ↑
14.  Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF]. ↑
15.  Id. ↑
16.  See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”). ↑
17.  Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)). ↑
18.  Id. ↑
19.  See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”). ↑
20.  485 U.S. 439 (1988). ↑
21.  Id. at 443. ↑
22.  Id. at 449. ↑
23.  Id. at 440. ↑
24.  See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site). ↑
25.  Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions). ↑
26.  See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”). ↑
27.  See American Indian Religious Freedom Act, 42 U.S.C. § 1996. ↑
28.  See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”). ↑
29.  374 U.S. 398 (1963). ↑

30.  406 U.S. 205 (1972). ↑