Native American Tribal Religious Freedom: Legal Battles and the Fight for Sacred Sites
For Indigenous peoples across North America, the land is not merely property or a resource; it is the genesis of their cultures, the repository of their histories, and the very essence of their spiritual lives. Sacred sites – mountains, rivers, forests, and rock formations – are living temples, indispensable to religious practice, ceremony, and identity. Yet, for centuries, this profound connection has been systematically undermined, first by policies of forced assimilation and suppression, and now by a complex web of legal battles where Western property law and religious freedom doctrines clash with deeply held Indigenous spiritual traditions. The fight for Native American tribal religious freedom is, at its core, a relentless struggle for the protection of these irreplaceable sacred places.
The historical trajectory of Native American religious freedom is marked by profound injustice. From the 19th-century "civilizing" policies that outlawed traditional ceremonies and languages to the forced attendance at boarding schools designed to "kill the Indian, save the man," Indigenous spiritual practices were actively suppressed. It was not until the American Indian Religious Freedom Act (AIRFA) of 1978 that Congress officially acknowledged the "inherent right of American Indian, Alaskan Native, and Native Hawaiian people to believe, express, and exercise their traditional religions." However, AIRFA was largely declarative, establishing a federal policy rather than enforceable rights. It stated that federal agencies should accommodate Native religious practices, but provided no mechanism for tribes to challenge infringements effectively. This critical weakness would prove devastating in subsequent legal challenges.
A significant turning point, and a major setback, came with the Supreme Court’s 1990 decision in Employment Division v. Smith. This case involved two Native American men who were denied unemployment benefits after being fired for ingesting peyote, a hallucinogenic substance used in Native American Church (NAC) ceremonies. The Court, in an opinion by Justice Antonin Scalia, ruled that a "neutral law of general applicability" – one that does not specifically target religious practices – does not violate the Free Exercise Clause, even if it incidentally burdens religious practice. This effectively dismantled the "compelling interest" test that had previously required governments to show a compelling reason for burdening religious exercise and to use the least restrictive means. The Smith decision sent shockwaves through the Native American community, stripping away a crucial layer of protection for their religious practices.
In response to the outcry, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, aiming to restore the compelling interest test for federal actions. RFRA prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates a compelling governmental interest and uses the least restrictive means. While RFRA offered some recourse, its application to federal land management decisions, particularly those impacting sacred sites, has been consistently contentious and often unsuccessful for tribes. The core issue remains: how does a Western legal system define and protect a religion that is inextricably linked to specific geographical locations, not merely abstract beliefs or practices within a building?
The most persistent and painful legal battles revolve around the protection of sacred sites on federal lands. The government’s assertion of ownership over these lands often clashes violently with Indigenous spiritual stewardship. A landmark case that exemplifies this struggle is Lyng v. Northwest Indian Cemetery Protective Association (1988). The Supreme Court considered whether the U.S. Forest Service could build a logging road (the "G-O Road") through the Chimney Rock area of the Six Rivers National Forest in California, an area central to the religious practices of the Yurok, Karuk, and Tolowa tribes. Despite overwhelming evidence that the road and logging would irrevocably destroy the spiritual integrity of the area, the Court, again, sided with the government. Justice Sandra Day O’Connor wrote for the majority that "incidental effects of government programs… that simply make it more difficult to practice certain religions but do not coerce individuals into acting contrary to their religious beliefs do not constitute a burden on religious freedom." This ruling established a chilling precedent: the government could destroy a sacred site without violating religious freedom, so long as it didn’t explicitly forbid tribal members from believing in their religion or coerce them into abandoning it. The destruction of the physical place, no matter how vital to spiritual practice, was deemed not to be a "burden" in the eyes of the law.
This legal framework has paved the way for countless contemporary battles:
Devil’s Tower (Mateo Tepee): Known as Bear Lodge to the Lakota, Cheyenne, Kiowa, and other Plains tribes, Devil’s Tower in Wyoming is a sacred place for vision quests and ceremonies. When the National Park Service implemented a voluntary climbing ban during June, a critical month for tribal ceremonies, it faced legal challenges from climbing groups. While the ban was upheld, it highlighted the tension between recreational use and religious preservation, demonstrating a rare instance where a federal agency attempted a direct accommodation.
San Francisco Peaks (Nuvaxuu): The San Francisco Peaks in Arizona are sacred to at least 13 tribes, including the Diné (Navajo), Hopi, Havasupai, Hualapai, and Yavapai-Apache. They are revered as living deities, sources of medicinal plants, and homes to Kachina spirits. For decades, tribes have fought against the expansion of the Arizona Snowbowl ski resort on the Peaks. The most contentious issue was the resort’s plan to use treated wastewater for snowmaking. Tribes argued that using effluent to create snow on a sacred mountain was a profound desecration, likening it to "spraying sewage on a church altar." Despite numerous legal challenges citing RFRA, the Ninth Circuit Court of Appeals eventually ruled in favor of the Snowbowl, stating that the use of wastewater, while offensive, did not "substantially burden" tribal religious exercise. The resort continues to make snow with treated sewage.
Oak Flat (Chi’chil Biłdagoteel): Perhaps the most urgent and emblematic battle today involves Oak Flat in Arizona, a sacred site for the San Carlos Apache and other Western Apache tribes. Oak Flat, known as Chi’chil Biłdagoteel, is integral to Apache coming-of-age ceremonies (Na’ii’ees), prayer, and traditional food and medicine gathering. It is located above a massive copper deposit that Resolution Copper, a joint venture between Rio Tinto and BHP, plans to extract using block cave mining, a method that would cause the land above to collapse into a two-mile-wide, 1,000-foot-deep crater, permanently destroying Oak Flat. The land was historically protected but was controversially included in a land swap provision within the 2015 National Defense Authorization Act, pushed through by then-Senator John McCain. The San Carlos Apache, led by Chairman Terry Rambler and activist Wendsler Nosie Sr., have waged a tenacious legal and political fight, arguing that the destruction of Oak Flat is an existential threat to their religion and culture. The Biden administration temporarily paused the land transfer, but the legal battle continues, with the fate of this irreplaceable sacred site hanging precariously in the balance.
Bears Ears National Monument: The designation of Bears Ears National Monument in Utah by President Barack Obama in 2016 was a historic victory for an inter-tribal coalition of the Hopi, Navajo Nation, Ute Mountain Ute, Ute Indian Tribe of the Uintah and Ouray Reservation, and Zuni. The monument, rich in cultural sites, artifacts, and natural beauty, was explicitly designated to protect its "cultural, spiritual, and ecological significance." However, President Donald Trump drastically reduced the monument’s size by 85% in 2017, opening large areas to potential resource extraction. This action was met with immediate lawsuits from the tribal coalition and conservation groups. While President Biden restored the monument to its original boundaries in 2021, the ongoing struggle highlights the vulnerability of federal protections and the continuous need for vigilance and political will to safeguard sacred lands.
The core difficulty in these legal battles lies in the fundamental clash of worldviews. Western legal systems tend to compartmentalize religion as a set of beliefs and practices distinct from daily life and land ownership. For many Indigenous peoples, religion is an holistic way of life, inextricably interwoven with the land, the environment, and communal identity. The land is the altar, the scripture, and the cathedral. Its destruction is not merely an inconvenience to religious practice but an existential assault on the spiritual foundations of a people.
Despite AIRFA and RFRA, Native American tribes often find themselves with insufficient legal tools to protect their sacred sites. The "neutral laws of general applicability" doctrine from Smith continues to loom large, and courts frequently struggle to understand the "substantial burden" when the government’s action doesn’t explicitly forbid religious practice but rather obliterates the physical space where it occurs. Furthermore, federal agencies often prioritize economic development, resource extraction, or recreational use over Indigenous religious freedom, frequently engaging in insufficient consultation or ignoring tribal concerns.
Moving forward, greater recognition and protection require a multi-pronged approach. This includes legislative action, such as the proposed Native American Sacred Places Protection Act, which aims to strengthen tribal consultation and provide stronger protections for sacred sites on federal lands. It also demands a paradigm shift within federal agencies, moving towards co-management agreements and genuinely incorporating Indigenous knowledge and perspectives into land management decisions. Ultimately, it requires a broader societal understanding that for Native American tribes, religious freedom is not an abstract right, but the very right to maintain their spiritual connection to the land, their culture, and their identity in the face of ongoing existential threats. The fight for sacred sites is a fight for survival, a testament to the enduring resilience of Indigenous peoples in their profound spiritual connection to their ancestral lands.
