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HowreligiousfreedomlawfailsNativeAmericans-DeseretNews.pdf
How religious freedom law fails Native Americans In two ongoing lawsuits, tribes are fighting for access to sacred sites
By Kelsey Dallas on June 29, 2021 8:23 pm
This June 15, 2015, file photo shows an encampment belonging to protesters in the Oak Flat
area of Superior, Ariz. The mountainous land is also known as Chi’chil Bildagoteel. It’s
where Apaches have harvested medicinal plants, held coming-of-age ceremonies and
gathered acorns for generations. Ross D. Franklin, Associated Press
This article was first published in the State of Faith newsletter. Sign up to receive the newsletter in your inbox each Monday night.
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One of the most sacred sites in North America may soon become a
copper mine. If it does, the dynamite used to extract the ore will
eventually destroy the land, turning a holy place into a crater as wide as
the National Mall is long.
The religious freedom protections that could save Oak Flat, which is
sacred to the Western Apache people, have failed Native Americans
many times before.
Judges, politicians and other leaders have refused repeatedly to
accommodate tribes seeking the ability to worship in peace, said Luke
Goodrich, vice president and senior counsel at the Becket Fund for
Religious Liberty.
“There’s often just a remarkably callous disregard of Native Americans
and Native American religious practices. There’s a lack of
understanding, as well,” he said.
Along with his Native American clients, Goodrich is working to build
understanding and ensure that America upholds its promise of religious
freedom for all. They’re asking the court to block the mining project
and ensure nothing like this crisis can happen again.
The Oak Flat case and another ongoing lawsuit called Slockish
challenge us to consider why tribes’ pleas for religious freedom
protections so often fall on deaf ears. I spoke with Goodrich last week
about this problem and whether he’s hopeful about the future.
This interview has been edited for length and clarity.
Deseret News: What makes cases involving Native Americans stand out
from other religious freedom cases?
Luke Goodrich: There’s a real deafness and blindness on the part of
the government when it comes to Native American practices that are
tied to historic lands. You can see that in some past court decisions.
In the 1980s in the Lyng case, which involved the construction of a
highway through a forest held sacred by Native Americans, the
Supreme Court ruled there was no substantial burden on religious
practices, since the government was not actually physically destroying
the land. There was this sense that the government is entitled to do
what it wants on its own land.
What’s missing from that decision is the fact that it’s only government
land because it was taken from the tribes by force. It’s like the court is
saying, ‘The government took this land from you back in the 1800s.
Therefore, it can now do whatever it wants.’
DN: That Lyng case jumped out at me as I researched this topic. It’s hard
to imagine the court saying something similar in a case involving other
faith groups.
LG: Let’s think about it in the context of the Oak Flat case. Say there was
a cross on the land. Given past lawsuits, we can assume that the
government wouldn’t dispute that an atheist who is offended by the
cross would be adequately burdened under the establishment clause to
sue for relief.
But, at the same time, the government is saying that Apaches who
worshipped at Oak Flat for millennia and whose whole identity is tied
to that land don’t have a cognizable burden to oppose the government
blasting it to oblivion.
DN: It seems like government officials and judges don’t understand Native
Americans’ ties to the land.
LG: If the government took land owned by a Baptist church to build a
highway, the Baptists could build another church on the other side of
town. For many religious groups, that would be possible.
But Native Americans can’t go create a new sacred site on the other
side of town. Their religious practices are inherently tied to a speci�c
piece of land.
You can compare the situation to the prison context or military context.
A prisoner or soldier can’t eat a kosher diet or access the Catholic
sacraments unless the government facilitates that since the government
controls the environment.
We should recognize that the government has an obligation to facilitate
or accommodate religious exercise in contexts like that.
DN: How does the government defend its actions?
LG: The government’s main argument in these cases is basically a
slippery slope argument. They’re saying, ‘We know this land is sacred
and we’re destroying it and ending your religious practices forever, but
if the court applies religious freedom law here, imagine the number of
legal claims we’d see.’
That’s the picture the government is painting in its legal briefs, that
there’d be no limit to the claims Native Americans would make since
they’ve lived all throughout the West. It’s as if a ruling in favor of Native
Americans would mean the government could never do what it wanted
to do again.
But, you know, courts have readily seen through that type of argument
in other contexts.
DN: What kind of relief can a court offer when damage to sacred sites has
already been done?
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LG: In the Slockish case, which involves a highway expansion project
that’s already completed, what the plaintiffs are seeking is some kind of
remediation of the site. The government could allow them to rebuild the
stone altar, replant native vegetation and resume their religious
practices at the site. In other cases, courts have actually ordered the
government to remove and reroute a highway.
Another part of what the plaintiffs want is a court ruling, a declarative
judgment, that says the government violated the law. It would vindicate
their ancestors.
DN: Are you feeling optimistic about the future?
LG: Larger religious groups weren’t always very attuned to the religious
freedom needs of minority faiths. Now, they’re starting to wake up to
the fact that everyone’s religious practices are intimately bound up
together. If one of us doesn’t have religious freedom, then none of us do.
It feels like there is a growing concern around and momentum behind
Native Americans’ religious freedom battles.
Fresh off the press
The University of Notre Dame hosted a conference Monday about key
threats to religious liberty in the U.S. and how to address them. I
watched the livestream of the event and wrote about some of the
proposed solutions.
Term of the week: Lateran Treaty
The Lateran Treaty of 1929 stabilized the relationship between Italy and
the Vatican. It outlined each government’s sphere of in�uence and
attempted to anticipate and then head off potential legal con�icts.
As you might have guessed, the document is easier to apply to some
battles than others. For example, in the past, Vatican and Italian officials
have clashed over what the treaty means for marriage regulations.
Catholic leaders cited it in 1966 as they attempted to prevent Italy from
legalizing divorce, according to Religion News Service.
Currently, the treaty is playing a supporting role in the Vatican’s effort
to force changes to LGBTQ rights legislation. Church leaders worry
that, as written, the bill would lead to attacks on Catholics who oppose
same-sex marriage.
What I’m reading ...
Two new books on same-sex marriage legalization have arrived to help
Americans understand (or, in some cases, remember) how gay
marriage gained crucial social, political and legal support over the
course of about �ve decades. Writing for Christianity Today, political
scientist Daniel Bennett makes the case for why conservative Christians
should engage with these books.
At �rst glance, Gallup’s recent report on American morality can seem
uneventful. The survey found that the share of U.S. adults who believe
the country’s moral values are getting worse rather than better — two-
thirds — is pretty much unchanged since 2002. However, researcher
Lydia Saad points out that this overall stability masks notable partisan
