Abstract

Excerpted From: Anna Sonju, Free Exercise Claims over Indigenous Sacred Sites: Justice Long Overdue, 110 Virginia Law Review 781 (May 2024) (166 Footnotes) (Full Document)

The Supreme Court's treatment of Indigenous sacred sites in the free exercise realm is fatal both in theory and in fact. In its most recent decision in Lyng v. Northwest Cemetery Protective Ass'n, the Court authorized the government to proceed with a construction project that would damage a Native American sacred site on federal land. In its opinion, the Court briefly acknowledged that Native American religious practices are “inextricably bound up with the unique features of the ... area.” 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. Yet there are commonalities across these religions, one of which is the importance of sacred sites. Sacred sites are specific locations with unique religious and cultural significance. 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. 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. 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. 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. Accordingly, each sacred site is markedly different from the next, possessing its own distinct spiritual beings and religious qualities.

Due to their incomparable religious worth, sacred sites are typically reserved for certain religious practices such as ceremonies and pilgrimages, or left undisturbed entirely so as to not “disrupt[] the lives of deities” therein. Altering or destroying an Indigenous sacred site strips it of its spiritual essence, signifying to worshippers that their “prayers will not be heard” or their “ceremonies will be ineffective to prevent evil and disease,” 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.

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. 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. 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.” Rather, it held that an individual has only been coerced into violating their religious beliefs if the government threatened to impose penalties for noncompliance.

Since Lyng, courts have repeatedly struck down free exercise claims involving Native American sacred sites, 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. Although Congress subsequently passed multiple laws aimed at protecting religious freedom, including one directed specifically at Native American religious liberty, these statutes have also failed to create a judicially enforceable cause of action.

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. Verner and Wisconsin v. Yoder 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.

[. . .]

The Free Exercise Clause of the First Amendment must apply equally to individuals of all religions, yet as of now it does not. Under the Court's narrow interpretation of coercion in sacred site free exercise lawsuits, adopted in Lyng and implemented ever since, Native Americans' land-based religions are not afforded the same free exercise rights as individuals of other religions. In order to succeed in a sacred site free exercise claim, the Court demands of claimants an impossible task: to prove that the government has outright banned their access to sacred sites. Courts have since refused to depart from the “coercion” requirement in Lyng. So, if sacred site claims are to ever succeed, the Supreme Court must seriously revisit its meaning of coercion.

To meaningfully protect Native American religious liberty, the Court must modify its substantial burden framework. This Note analyzed and critiqued three potential approaches to this: the substantial threat and centrality approach adopted by Justice Brennan, the intermediate scrutiny proposition by Professor Alex Tallchief Skibine, and the baseline coercion and substantial interference test offered by Professors Stephanie Barclay and Michalyn Steele. This Note then opted for a novel approach to the meaning of coercion in sacred site claims, which incorporates some positive aspects of former theories, and additionally provides new insight into free exercise doctrine. This Note argued that the implicit prohibition inquiry, narrowly tailored to sacred lands, resolves many of the problems with the former suggested theories. The test addresses the floodgates and centrality concerns expressed by the Lyng majority with broadening the substantial burden framework. And while it is uniquely fitted to address the concerns of Native American claimants, the test benefits all religious claimants making sacred land claims. Most importantly, it places Native American sacred site claims on equal footing with other religious claims--something that is not timely, but rather, long overdue.

University of Virginia School of Law, J.D. expected 2024.