Can those who use the wilderness for religious experiences prevent impending destruction of that wilderness on the theory of the First Amendment right of religious freedom? For the first time, federal courts at both the trial and appellate level have given an affirmative answer to that question. [N.B. Ultimately these decisions were reversed by the U.S. Supreme Court.]
For several years, efforts by Native Americans to prevent development of their sacred grounds has met with little success. For example, when members of the Cherokee Indian tribe brought suit to halt construction of the Tellico Dam on the Little Tennessee River because it would flood their "sacred homeland", the Sixth Circuit Court of Appeals upheld the District Court's decision that the flooding caused by the dam would destroy only "cultural history and tradition" rather than any true religious interest.
In many cases, such rulings reflect a misunderstanding of Native American religion. Deities in most Native American religions are immanent in Nature, and thus sacred lands are not only similar to a "church" from the non-Native perspective, but such sites are temples in the most profound sense - as dwelling places for sacred beings. But because most non-Indians use outdoor areas at most merely for recreation, if not for extraction of natural resources, typically efforts to protect a particular landscape for religious reasons are rebuffed. One reason the courts failed to recognize the legitimate religious concerns involved was because the issues were usually decided without a trial, through the opponent's use of a motion for summary judgment.
In one recent case in South Dakota, members of the Lakota and Tsistsistas Indian tribes complained that the state's construction of roads and parking lots had disturbed the natural features of Bear Butte, a site of religious significance to the Indians living in the Black Hills area. But a federal district court insisted that the states' road construction did not burden the Native American Indian religious practice - for the utterly preposterous reason that the roads improved access to the Butte!
Similarly, when the Hopi Indian tribe sued the Forest Service to prevent further development of a ski area in the San Francisco Peaks region of northern Arizona, the court concluded that the proposed development would not impinge upon the continuation of "all essential ritual practices" despite the tribe's contention that the development would disturb deities inhabiting the Peaks.
Most of the forgoing cases simply failed to recognize the nature of Native American Indian practice and belief. But even in cases where that belief is recognized as religious, Indian tribes must show that their religious values outweigh the governmental interests served by development projects. Faced squarely with this question, the U.S. 10th circuit Court of Appeals has held that the flooding of Rainbow Bridge National Monument - a site of a Navajo deity and a sacred prayer spot - is justified by the federal government's multi-state water storage and power generation project on the Colorado River.
But in northern California, Native American tribes have finally succeeded in proving that their religious interests outweigh a proposed governmental development project. In Northwest Indian Cemetery Protective Association v. Peterson, 565 F. Supp. 586 (N.D. Cal. 1983) aff'd ______ F.2d ______ (1985) rev'd ____ U.S. _______, Native Americans joined ranks with environmentalists to halt construction of a Forest Service road along the crest of the Siskiyou Mountains. The U.S. Forest Service had proposed to complete a 6.2 mile section of road in the high country of the "Blue Creek Roadless Area", including lands proposed for protection as Wilderness by citizen groups under the Wilderness Act of 1964. The proposed road would have cut through the heart of the proposed wilderness area, directly in the high country which Native Americans use for religious purposes. The road proposal included timber harvesting in a 31,000 acre area.
After a ten year battle with the Forest Service over this project, six environmental groups of the region and five Native American plaintiffs finally went to court. In a landmark decision issued May 24, 1983, Federal District Judge Stanley Weigel found squarely in favor of the plaintiffs in the case. While Judge Weigel issued a permanent injunction preventing road construction by reason of violations of a number of environmental laws, one major basis for the Judge's decision was the First Amendment rights of the Native American plaintiffs.
The evidence in the case indicated that for centuries members of the Yurok, Karok, and Tolowa tribes had used the "Chimney Rock" high country of the Siskiyous for religious purposes. A major feature of tribal religion was the "Vision Quest" undertaken by youthful members of the tribe, and this practice continues today. Individuals hike into the high country and use "prayer seats" to seek religious guidance or personal "power" through "engaging in emotional and spiritual exchange with the creator." Such encounters are undertaken only after a purification ceremony, and the religious experiences in the mountains are the cornerstone of the tribal religions. The Indian plaintiffs testified that their religious experiences were possible only by the solitude, quietness, and pristine environment found in the high country.
Other religious practices requiring the sacred lands of the high Siskiyous are purification rites made before religious ceremonies such as the White Deerskin and Jump Dances. These dances, according to Native American religious belief, provide the periodic "World Renewal" essential to the Indian's belief system. Similarly, medicine women in the tribes travel to the high country to pray, obtain spiritual power, and to gather medicines.
Because such practices by the Native Americans were undisputed, ongoing, and clearly religious in character, Judge Weigel held that the First Amendment prevented the Forest Service from proceeding with development in the area.
Judge Weigel accepted the tribal claim that damaging the pristine wilderness environment of the area would preclude its religious use, and that noise, environmental degradation, and competition from increased recreational use would also effectively prevent continuation of tribal religious practices. Citing legal authority that the unorthodox character of these religious beliefs did not deprive the Indians of the safeguard contained in the Free Exercise Clause of the United States Constitution, the court permanently enjoined the road construction and planned logging.
In making his ruling, Judge Weigel carefully weighed the religious interests against the governmental interest involved. In an important footnote in the opinion, the Judge stated: "The government must attempt to accommodate the legitimate religious interests of the public when doing so threatens no public interest, even when those religious interests involve use of public property."
Rejecting the approach taken by other courts, Judge Weigel insisted that only governmental interests of the "highest order" can justify a burden on the free exercise of religion. In examining the evidence, the court found that the government's contention that the road construction was "necessary" was false. The Court found that timber in the area could be harvested without the proposed road, that there would be no net increase in the number of jobs in the regional timber industry due to the road, and that new motorized recreational use would not only disturb the tribal religious practices but would compete with existing back country use by wilderness enthusiasts.
Finally, Judge Weigel held that prohibiting the proposed road construction would accommodate the Indian's free exercise of religion without promoting excessive governmental entanglement with religion. Existing recreational use of the area would be permitted to continue. Furthermore, preservation of the high country as wilderness would result in less governmental entanglement than development and mitigating access regulations.
Thus, for the first time, an American court has determined that Native Americans use of wilderness for religious purposes deserves First Amendment protection.
The Forest Service, as a defendant in the case, appealed this decision to the Ninth Circuit Court of Appeals. The agency argued that notwithstanding the evidence submitted at trial, its proposed road construction would not burden the Indian plaintiffs' free exercise of religion, and that even if it did impose such a burden, there was a compelling governmental interest sufficient to override the Indians' religious interests.
The appeals court reviewed the testimony given at trial and Judge Weigel's opinion, and concluded that the Native Americans had met their burden of proving not merely that the area was used for religious purposes, but was "indispensable and central to their religious practices and beliefs and that the proposed governmental actions would seriously interfere with or impair those religious practices". Not only had the Indians shown that they traveled to the high country "to communicate with the "great creator" and to perform religious rituals, but the Forest Service itself in an earlier report had concluded that "intrusions on the sanctity of the Blue Creek high country are. . . potentially destructive of the very core of Northwest Indian religious beliefs and practices."
The three-member appeals court, in an opinion authored by Circuit Judge Canby, concluded that not only had the plaintiffs met this required showing, but noted that any governmental action that makes exercise of first amendment rights more difficult or impedes religious observances may be invalid even if there is not, strictly speaking, an actual penalty against religious beliefs or practice. The Court noted that Judge Weigel's decision left the Forest Service free to administer the high country for all other designated purposes in addition to religious values, including outdoor recreation, range, watershed, wildlife and fish habitat, and wilderness.
The Forest Service's argument that governmental interests outweighed the Native American's religious beliefs likewise did not meet with approval from the appeals court. The Court simply noted that the issue was not whether the Forest Service officials had violated statutory directives, but whether they violated the First Amendment, and that the evidence provided in the trial amply supported Judge Weigel's decision.
Attorney Marilyn Miles of California Indian Legal Services, who represented the Indian plaintiffs, points out that the oral testimony made in the trial was supplemented with an audio-visual program which described the Indian's culture and religious practices for the court's benefit. As Mike Sherwood, a Sierra Club Legal Defense Fund attorney who argued the case for the environmental plaintiffs stated, "The key to the victory here was the extensive documentation that was provided, with numerous witnesses testifying to the importance of the land itself in their religious practices."
As of this writing, the Forest Service will probably appeal the decision to the U.S. Supreme Court. A prediction of what the Supreme Court might rule is difficult to make -- even if the Court chooses to accept the case.
While the framers of the Bill of Rights may not have had American Indians in mind, surely its guarantees should include all Americans. Through this landmark decision, the judiciary has taken a vital step to advance the Free Exercise Clause of the First Amendment to protect the religious freedom of the First Americans.
After Word: Within a very few years after the foregoing article was written, upon re-direction from the U.S. Supreme Court, Judge Weigel's decision was reversed and the Native Americans lost the case. That result, among other cases, was instrumental in Congress adopting the "Religious Freedom Restoration Act" shortly thereafter. However, the U.S. Supreme Court ruled in 1997 that the Act was unconstitutional. It thus appears that today, in an America which is supposed by many to be the last haven for religious liberty, Native Americans, pantheists, pagans, and others who have valid religious free exercise interests in wild land will continue to have that interest snubbed by American society and by the legal system.
Harold W. Wood, Jr. is a deputy county counsel for Tulare County, California. Neither he nor the Tulare County Counsel office was involved in this litigation, and the opinions expressed herein are strictly his own.
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