Protecting Native American Sacred Sites and Religious Freedom

Abstract

Traditional religious practices of Native Americans are inseparably bound to land and natural formations. These may be places where spirits dwell, where sources of power are, spots where spirits often reveal themselves. A relationship to specific physical areas is fundatmental in traditional Native American religions. From one generation to the next, continuity of spiritual and traditional belief is maintained through the natural world. Tribal religious do not incorporate a set of established truths (theological doctrines) as do western religions; rather they are based on the performance of rituals and ceremonies, many at specific sites, which have the ability to generate new revelations, These sites are often related to tribal creation stories and other historical events of religious significance. For many tribal religions, there is not alternative place of worship. When of is discussed in the context of traditional Indian religion, it is the right of practitioners to maintain relationships with the natural world that is at issue. Many sites sacred to Indian religions are located on what is currently federal land (or the subject of activities which are, at least in part, federally funded). Thus, actions of federal agencies (and specifically federal land managers) are of great importance to traditional Indian religious practitioners. As has historically been the case in regard to the Indian's relaitonship with the land, the institutions of the federal government frequently have failed to respect the needs of Indians where incompatible with the needs and philosophy of western society. Specifically, where western notions of resource development, i.e., logging, mining, tourism, conflict with the preservation of the integrity and sanctity of sacred sites, the inclination of most governmental (and private) authorities is to recognize and understand the goals and needs of those who want to develop, but not the deep-seated religious beliefs of Indians who might be affected by that development. The Supreme Court's interpretation of the First Amendment reflects this historical insensitivity, if not callousness. Lyng v. Northwest Indian Cemetery Protection Assocation, 485 U.S. 439 (1988) involved the construction of a road (the G-O Road) by the Forest Service which would marginally improve access to timber and recreational resources. The Forest Service's own expert found that the construction of the road was potentially destructive of ceremonies... which constitute the heart of the Northwest [Indian] religious beliefs and practices. Both the federal district court and the Ninth Circuit Court of Appeals had ruled that the government's interest in building the road did not justify the destruction of the Indian religions that utilized the affected sites. The United States Supreme Court reversed, ruling that such a balancing test was not applicable to the government's management of its land. It ruled in favor of the Forest Service based upon a conclusion that the freedom of religion clause in the First Amendment does not restrict the government's management of its lands so long as: (1) the government's purpose is secular and not specifically aimed at infringing upon a religion; and (2) the government's action does not coerce individuals to act contrary to their religious beliefs. Thus, in essence, Indian religious practitioners have no First Amendment right to challenge land management decisions which affect or destroy the integrity of sacred sites. Since such sites are an integral part of traditional religions, the impact of this decision is to place Indian religions outside the protection of the First Amendment to a very large extent.