A federal appeals court heard arguments in a years-old case brought by leaders from two Northwest tribal nations who say the federal government needlessly destroyed a sacred religious site in 2008 despite objections from them.
A three-judge panel of the federal Ninth Circuit Court of Appeals heard arguments on Nov. 16 in Slockish v. U.S. Federal Highway Administration, a case that lawyers representing the tribal leaders say has broader implications for religious freedom in the U.S.
The case stems from the destruction of a sacred religious site near Mt. Hood in Oregon for a highway-widening project, despite the federal government knowing it existed and over objections from tribal leaders who have alleged that the project violated religious, environmental and land-preservation acts. Three leaders subsequently sued the federal government over the decision and last week asked the court to force the federal government to rehabilitate the site and protect it in the future.
A federal district court in 2018 ruled that the destruction of the site didn’t violate the Religious Freedom Restoration Act. Last year, a judge said the project didn’t violate any environmental laws and that the federal government didn’t have to rebuild the site.
“We have been waiting for over a decade for this injustice to be set right,” said Carol Logan, tribal elder of the Confederated Tribes of Grand Ronde and one of the three leaders involved in the case, in a press release. “It is past time for the court to recognize that without our sacred land, our religious traditions will be lost.”
The other two tribal leaders involved are Yakama Nation hereditary chiefs Wilbur Slockish and Johnny Jackson, who died in 2020.
The site in question is less than one acre near Mt. Hood and U.S. Highway 26, and contained a stone altar and potential burial sites. It sat along traditional trading and gathering routes that had been used since time immemorial, according to court documents. The site also lies among millions of acres that the Yakama Nation ceded to the federal government in the 1800s.
In the Nov. 16 hearing, attorney Joseph Davis, who argued for the tribal leaders, said restoring the site would be straightforward. That would include replanting trees, rebuilding the altar and removing the grassy berm.
“Many Native American religious traditions revolve around sacred sites. And because the government long ago took the Native Americans’ land by force, many of those sacred sites are on government land. Yet, the government is now trying to get the Ninth Circuit to accept that it has a blank check simply to destroy any site on its land,” Davis said in a press conference following the Nov. 16 hearing. “Fortunately, while an argument like that may be consistent with the federal government's historical treatment of Native Americans, it isn't consistent with current federal law, like the Religious Freedom Restoration Act.”
In the 1980s, the federal government had previously recognized and protected the site because of its potential historical and religious significance. But to address safety concerns, the government decided to widen the highway by 14 feet and add a turn lane, saying in 2006 that the site was likely to be impacted. Still, the government decided to go ahead with the project.
The government could have protected the site, but instead chose to protect a wetland on the other side of the highway instead, the three tribal leaders have claimed in court documents.
In 2008, the religious site was destroyed. Old-growth Douglas fir trees were cut down to make room for the widened highway; traditional campsites, Native American trails and possible burial sites were buried; the stone altar was torn down and future access to the site was blocked by guardrails.
The tribal leaders say they told the government about their concerns in 2008 before work was completed, according to court documents. But the federal government has claimed that surveys of the site had concluded that no burial sites definitively existed in that area and added that no tribal governments objected to the project during the consultation process.
The court should uphold the previous ruling, said Joan Pepin, the attorney who argued for the federal government on Nov. 16, because there’s no meaningful work that can be done to restore the site. The federal government doesn’t control the embankment, tree management or guardrails in question — the Oregon Department of Transportation, which was previously dismissed from the case because it has sovereign immunity, does. In addition, nobody knows what happened to the stones from the altar, Pepin said.
What’s more, she said, the lawsuit came too late to have any effect since the site had been destroyed before it had been filed, making the case moot.
“There's no relief that can bring it back and therefore this case is moot,” Pepin told the court. “All of these forms of relief are outside our hands.”
If the appeals court upholds the lower court’s ruling, or if it first rules against Indigenous people and non-Indigenous allies in a similar case from Arizona, it could have disastrous consequences for the free exercise of religion, according to Davis, who is an attorney for Becket, a law firm that focuses on religious liberty, and one of the firms representing the three tribal leaders who brought the case.
“If the government's argument, if it were accepted, would have very far-reaching consequences for people of all religious faiths,” he said. “Any house of worship could be destroyed, and apparently the government would say that’s not a substantial burden.”
The court didn’t issue a ruling last week. It also hasn’t issued a ruling in the related case, Apache Stronghold v. United States.
Lead photo: Supporters of sacred sites are pictured outside of a court hearing in Oregon. A three-panel judge of the federal Ninth Circuit Court of Appeals heard arguments in Slockish v. U.S. Federal Highway Administration on Nov. 16, 2021. Photo courtesy of Becket Law
This story is co-published by Underscore.news and Indian Country Today, a news partnership that covers Indigenous communities in the Pacific Northwest. Funding is provided in part by Meyer Memorial Trust.