Sacred sites, Broken trust
The English translation of Native American culture and tradition as "religion" has led to centuries of destruction of sacred sites as "constitutional"-- but is it?
Chi’chil Biłdagoteel, or “Oak Flat”, is a sacred place for the San Carlos Apache Nation within the boundaries of Arizona. The U.S. Senate wants to see it imploded into a crater for the short term gain of a mining company, Resolution Copper, a subsidiary of Rio Tinto.1
If the company gets its way, the U.S. Forest Service will swap the tribe's sacred land for 5,000 acres of replacement lands miles away, where there are no sacred sites or natural features that come close to what is found at Oak Flats. The San Carlos Apache have already suffered the loss of their sacred landscape in a previous "land swap" for the mining company Freeport-McMoRan.
Currently, Native Nations in Nevada are seeking to prevent the destruction of an important sacred site from lithium mining. (The new demand for green energy and batteries is driving the demand for lithium.)2 The Dine' (Navajo) sacred Twin Arrows, a site used for ceremonies since before the founding of America, was also destroyed by mining. The sacred Mt. Taylor in New Mexico has been used since the 1950s for uranium strip mining.3 Lake Oahe, a sacred site of the Standing Rock Lakota Sioux is still in jeopardy of being destroyed by the U.S. government and the oil companies. The sacred Lake Oahe of Standing Rock is being desecrated by a pipeline, planned to run through the lake risking irreparable harm if there is an all-too-frequent oil spill. The sacred site of Mauna Kea in Hawaii is being destroyed by the Thirty Meter Telescope.
Destruction of sacred sites is not a new development. Over hundred years ago, the sacred Black Hills in South Dakota were taken from the Standing Rock Sioux Tribe by the U.S. government, allowed pioneer settlement on those lands and then turned the remaining land into a national park. Decades ago, the sacred Mt. Graham in Arizona was clear cut by the University of Arizona. The Zuni Salt Lake in New Mexico has been dry for years due to water being diverted for agriculture.
This is just a partial list.
Most of the public in a survey favored protecting the Oahe Lake over construction of the Dakota Access Pipeline through it,4 so why, as a nation, do we not protect these sites?
Federal judges often do not understand American Indian Law, and do a poor job of applying it to cases. (Assoc Justice Barrett, confused CFR courts with tribal courts in her first American Indian Law case on the U.S. Supreme Court in Carson v. Makin, just last week. ) That means the federal trust responsibility which is unique to Native Nations is not well understood. Attorneys often leave law school without even understanding there is a third sovereign in the United States — federally recognized tribes — and that is the fault of law schools. So when hearing the word “sacred”, the First Amendment freedom of exercise, and establishment clause prohibition comes to mind and then any case involving sacred sites all end with absolutely no protection based on Courts’ analyses using the First Amendment in a traditional analysis as if it was about individual Native Americans, rather than tribal governments’ culture and traditions and continuation of its existence.
There is a Trust Responsibility to Native Nations
Sacred sites have been and continue to be destroyed in the United States. Even when the federal government has a trust responsibility to a federally recognized tribe, and so has a fiduciary duty to protect the Native Nation’s culture important to its existence, it has turned a blind eye while developers or mining companies destroy them. In some cases, the government including Congress, has even been complicit in the destruction, as in the Oak Flat case, where Sen. John McCain sponsored legislation to ignore any conclusion from an Environmental Impact Statement from the federal law, NEPA. The legislation would allow the federal government to go through the process of the environmental review, and then regardless of the result, the end of the process would trigger an automatic sale to Rio Tinto to own and destroy the sacred site.5
Here are six points to consider in protecting sacred sites:
First, there is no word for religion in most Native American languages. The Native American connection to the natural environment is cultural, traditional, and ceremonial. It is, often, linked to sovereignty and tribal governance, but is it a religion as the term is understood from a western viewpoint?
Tribal and individual relationships of Native people to the environment is expressed as religion despite having no equivalence in any Native language. For example, the Ojibway have “no (one) word for religion” but it is part of a traditional lifeway. Colonization reduced this complex indigenous relationship to the environment to one word. This led to stripping of the spiritual significance of Native American natural sites since the beginning of the relationship between the tribal nations and the United States. This was done in the name of protecting the wall between church and state. Sacred sites were lost and desecrated due to this First Amendment framing with the word “religion”. The narrow interpretation of the Free Exercise Clause and the broad interpretation of the Establishment Clause of the Constitution ensured the continued injustice through broken treaty promises to allow continuity of tribal self-governance.
Second, the concept of sacred space is very different from the western concept of religion. In describing the Blue Lake case, R.C. Gordon-McCutchan explains the “edifice complex”6 as an absolute bar to understanding the Native American experience with sacred spaces. Christians think of sacred spaces as buildings that are churches and chapels, whereas Native Americans think of environmental places as sacred spaces.7 Therefore, using the term “religion” as a term-of-art not only masks the different type of relationship that Native Americans have with the environment but leads to adopting it as synonymous with the meaning of “religion” in Constitutional jurisprudence. Many Native American individuals choose a western religion and make it their own but that does not diminish their strong practice of tribal traditions that contribute to their cultural survival.
Third, the use of the First Amendment8 is limited by the Establishment Clause which has stopped the government from protecting “religious” sites because of the fatal test of “entanglement” of the government with religion. It is also limited by the Free Exercise Clause where the balancing test proves that no matter what the burden on Tribes’ freedom of religion, there has never been a burden too great to outweigh the government’s compelling state interest9 when it comes to sacred sites.
Yet, when it served the political aims of U.S. policy to terminate Tribes and assimilate them away from their culture, traditions, and “religion”, the U.S. government entangled itself inextricably with religion when it set forth its “Peace Policy”10. In 1869, President Grant established his “Peace Policy”11 that granted Christian missions contracts and federal funding to “civilize” and Christianize the Native American peoples of specific reservations.
Fourth, even when the federal government makes a good faith effort to protect Native American sacred sites, it has failed. The actions of Presidents’, Congress, and Tribal Nations to protect Native American sacred sites, since 1978, have included Executive Orders,12 statutes intended to protect sacred sites,13 statutes intended to protect religious liberty,14 and litigation. All have failed. The future of the sacred sites in Bears Ears National Monument with its tumultuous judicial ride using the Antiquities Act of 1906 – first to expand it and then to diminish it – still hangs in the balance. But just last week, a creative way to manage the sacred site was announced that a council made up of several Native Nation representatives and local non-Native interests would co-manage the site.
Fifth, the current line of cases follow the Lyng case,15 which failed to protect a sacred site in favor of building a road through a wilderness that destroyed it. The statutory fixes (AIRPA, RFRA) that were passed — a way to correct unintended consequences —to try to correct that result were largely found to be unconstitutional. Unfortunately, Carson v. Makin, No. 20-1088, decided June 22, 2022, (religious schools receiving government funding issue) merely cited Lyng as authority, but reached the opposite conclusion in this case, without bothering to distinguish it.
Using this same absurd legal analysis that gives a fundamentally opposite result that the RFRA intended to prevent, the Ninth Circuit, found that it was NOT a substantial burden on the practice of religion by the Apache if they destroy the sacred site that is the practice of the religion. Writing in dissent, Justice Berzon said, "It would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise only when the government uses carrots and sticks to influence people's behavior indirectly but not when it directly prevents access to religious resources. . . Yet the majority reaches just that illogical interpretation of RFRA in this case, without acknowledging its incoherence."
A bill languishing in Congress can undo the destructive Sen. John McCain statute that resulted in the forced sale in the first place. But making it a priority for the majority is the challenge.
Solutions
There are two possible solutions: (1) A different analysis of the First Amendment for Native Nations due to their unique status with the federal government is warranted and consistent with the federal trust responsibility; or (2) abandon the First Amendment argument because culture and tradition required for the continued existence of the Tribe is not “religion” as it is defined in western thought. Thus, protection of sacred sites is more related to sovereignty, the right to self-governance, cultural and tribal practices. As Vine Deloria said, “There is no salvation in tribal religions apart from the continuance of the tribe itself.”16
The First Amendment to provide for freedom to practice your religion, has failed in every single case before a federal court when it involves land. Why? Because if the government action does not single out and prevent a Tribal tradition, then it does not violate the Free Exercise Clause. If the government action would involve entangling the government with the religious practice (which is always the case if the government acts to protect the site), then it is a violation of the First Amendment. These judicial interpretations fail to recognize the unique relationship of federally recognized tribes and the federal government, and it is not a simplistic First Amendment analysis.
This unique relationship has been defined by the U.S. Supreme Court as a trust responsibility to Native Nations, the federal government acting as a fiduciary on behalf of protecting culture and tradition important to self-governance and existence. Treaties can provide the basis for this protection, as well as the tribe’s status as a federally recognized tribe.
When Native Americans lose their sacred sites, all of America loses its important traditions and culture. These sites are a part of our country's history and should be protected. The First Amendment should be reinterpreted in the cases involving Native Americans because of their unique relationship to the federal government. So far, the federal courts have not recognized this important legal distinction, which has led to repeatedly allowing the destruction of sacred sites.
If you would like to read more on this topic, please go to my recent law review article, “LOST IN TRANSLATION: A translation that set in motion the loss of Native American spiritual sites,” in the 2022 volume of UCLA’s The Indigenous Peoples’ Journal of Law, Culture & Resistance.
https://www.washingtonpost.com/history/2021/04/12/oak-flat-apache-sacred-land/
https://www.hcn.org/articles/indigenous-affairs-mining-federal-judge-allows-lithium-mining-on-native-massacre-site-excavation
https://nmpoliticalreport.com/2020/01/10/an-inactive-uranium-mine-located-on-a-sacred-mountain-will-finally-close/
Rob Suls, Public divided over Keystone XL, Dakota pipelines; Democrats turn decisively against Keystone, Pew Rsch. Ctr. (Feb. 21, 2017) https://www.pewresearch.org/fact-tank/2017/02/21/public-divided-over-keystone-xl-dakota-pipelines-democrats-turn-decisively-against-keystone/.
https://www.phoenixnewtimes.com/news/environmental-study-of-planned-copper-mine-at-arizonas-oak-flat-could-halt-project-8157637
R.C. Gordon-McCutchan, The Battle for Blue Lake: A Struggle for Indian Rights, J. of Church and State 785-97 (1991).
Vine Deloria, Jr., God is Red. A Native view of Religion (1994).
U.S. Const. amend. I.
Barclay, Stephanie H. and Steele, Michalyn, Rethinking Protections for Indigenous Sacred Sites (September 8, 2020). 134 Harvard Law Review 1294 (2021).
Ulysses S. Grant, Inaugural Address Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/203651 (last visited July 27, 2020).
Ulysses S. Grant, Inaugural Address Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/203651 (last visited July 27, 2020).
President William J. Clinton, Executive Order 13007, “Indian Sacred Sites” 26 Fed. Reg. 26771-2 (May 29, 1996).
American Indian Religious Freedom Restoration Act, 42 U.S.C. § 1996 (1978).
Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (November 16, 1993).
Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).
Deloria, supra note 9, at 200.