Institutional Entrepreneurship: Achieving

Increased Sacred Sites Protections on Federal Lands

By Kevin Heade (Seminar Paper)

Federal Indian Law II: Spring 2011

Professor Clinton

ASU Law

Heade

I. Federal Cooperation to Protect Sacred Sites on Federal Lands

"Justice is not a flexible tool.  Unless we all do our part to ensure that justice is applied equally to all human beings, we are a party to its abuse.  We must stand together to protect the rights of others." Leonard Peltier1

A. What are “Sacred Sites”?

Many conflicts surrounding the use and control of religiously significant sites are well

known. In Jerusalem, Jewish and Muslim peoples have had to reach an understanding regarding

the Wailing Wall and the Dome of the Rock.2 In Kashmir, the Hindu and Muslim religions have

been central to the territorial dispute between India and Pakistan.3 In the United States, however,

where the dominant religions were founded on other continents many years before being

transplanted to North and South America, disputes over land fueled by religious beliefs have not

played a central role in the development of conceptions of property rights.4 The struggles of

indigenous peoples to protect their religious practices in lands known as “sacred sites” have

developed in this contextual history of land cessions and federal enclosure.

This paper will provide an overview of the legal conflicts regarding the role of the United

States government in responding to the religious needs of indigenous peoples on sacred sites on

federally owned lands.5 After exploring the application of the First Amendment, federal laws,

federal regulations implementing those federal laws, and executive orders in litigation over

1 http://www.nativevillage.org/Libraries/Quotes/Native%20American%20Quotes%2010%20.htm

2 See generally, Jerusalem: An Analysis of Legal Claims and Political Realities, 12 Wis. Int'l L.J. 221 (1994)

3 See generally, Ali Khan, The Kashmir Dispute: A Plan for Regional Cooperation, 31 Colum. J. Transnat'l L. 495,

496 (1994).

4 Peter Zwick, A Redeemable Loss: Lyng, Lower Courts and American Indian Free Exercise on Public Lands, 60

Case W. Res. L. Rev. 241, 244 (2009)

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sacred sites protections, the strategies of the litigants will be assessed in an attempt to propose a

strategy that tribes and other sacred sites protection advocates should adopt when faced with

threats to the integrity of lands considered to be sacred.

First, one must understand what makes land sacred to a particular indigenous culture. As

has been mentioned, the dominant religions of the United States have been imported from

abroad,6 and those religions predate the United States and the colonial governments before it.7

That these religions, particularly Christianity, were exported widely from their geographical

origins demonstrates that the religions were not bound to those geographies.8 Christianity,

Judaism9, Islam, Buddhism, and Hinduism can be practiced anywhere in the world because the

structural foundation of these religions emphasize individual internalization of ideas as a means

to the spiritual realm.10 The place of religiously significant events can play a role in some

important elements of religiously significant practices, but the spiritual significance of those

events can usually be appreciated far from the place where the event occurred. Indigenous

spiritual views, however, are geographically centered.11 In many instances, the events of spiritual

significance are revered at the actual place where they occurred.12 These places possess sacred

qualities because the spirits responsible for the events dwell at those specific places for time

immemorial.13 The place plays a central role in the spiritual beliefs, and religious practices

developed of many cultures that are dependent on accessing those sites.14 Thus, sacred sites serve

as the foundation from which many indigenous cultures have grown and thrived. 15

Native Americans’ survival requires the protection of sacred sites. As Vine Deloria, Jr.

explains, “Indian religion appears to many of us as the only ultimate salvation for the Indian

people. Religion formerly held an important place in Indian tribal life. It integrated the functions

of tribal society so that life was experienced as a unity.”16 If the survival of each tribe’s unique

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cultural identity depends on the protections of sacred sites, then how should the United States

government respond to these needs?

B. The United States: “Guardian” and “Landowner.”

The United States Government has a “government to government” relationship with

Native American tribes.17 In 1831, the Supreme Court characterized this relationship as one of

guardian (The United States) and ward (tribes).18 The role of the United States in this

government to government relationship has been seen as a protector of tribal interests from

incursions to their sovereignty by States and United States citizens.19

However, the United States also serves as a public landowner in the context of federal

land disputes regarding sacred sites.20 While sacred sites may have been part of the aboriginal

lands of indigenous peoples, they fell out of control of those indigenous peoples as a result of

treaty cessions, Congressional enactments, and executive orders which often narrowed

indigenous land claims significantly, stripping control of vast swaths of aboriginal territories

from tribes.21 The United States federal policy of termination and forced assimilation, mostly

through the allotment of tribal lands, led to “surplus” Indian lands being transferred to the control

of the federal government.22 Sacred sites are likely to be found in remote wilderness areas

featuring unusual landscape features (e.g. vistas, mountains, cliffs) that are not easily converted

into farming, ranching, or other homesteading activities.23 Because the allotment policies

occurred after the Indian Removal Policy had removed tribes from the eastern portions of the

country, and the surplus lands suitable for homesteading and other use by white settlers had been

widely settled and converted into Western civilization, most of the sacred sites on federal lands

are found in the western portion of the United States.24

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Because sacred sites usually exist in remote areas, disputes over access and control were

not likely to arise until the western portion of the United States became more heavily settled by

non-Natives.25 As the West became more populated, and the general public began looking to

federal public lands as places for recreation and natural resource extraction, disputes between

non-Native and Native cultures developed.26 The United States government confronted the two

seemingly conflicting roles - responsibility for protecting tribes (as domestic-dependent nations)

and the responsibility of administering its duties as landowner in a way that does not infringe on

the freedoms of its citizens.27

C. The Need to Find Better Strategies to Protect Sacred Sites

The disputes over how the United States should respond to competing claims for access

and control over federal lands containing sacred sites led to conflicts resulting in contentious

litigation, congressional enactments, and executive orders addressing sacred site conflicts on

federal lands.28 Proponents of sacred sites protection have primarily used these three claims in

their efforts: 1.) Religious Freedom 2.) Historic Preservation Act 3.) Environmental; Protection

Act.29

The remainder of this paper will explore the efforts to protect sacred sites under these

three legal claims. Key court cases will be analyzed with the intent of providing tactical

suggestions for achieving the strongest protections possible for sacred sites. The analysis will

show that tribes confronted with the desecration of sacred sites on federal lands need to consider

a panoply of tactics in their efforts rather than relying solely on legal arguments in federal court.

Specifically, among all of the possible strategies that tribes may employ, the most advantageous

tactic available involves the utilization of their unique government to government status with the

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United States to influence the federal agencies responsible for federal land-use decisions to make

official agency determinations which afford protections to sacred sites.

II. “Institutional Entrepreneurship” in Federal Agencies to Protect Sacred Sites under

Existing Legal Frameworks

The following discussion will lay out the legal framework of existing efforts to protect

sacred sites. As will be shown, certain tactics, particularly “power struggles,” are more likely to

fail at achieving sacred site protections. Yet, even the “successes” in sacred sites protection on

federal lands fail to achieve the absolute protections desired.30 Given the inability of sacred sites

protection advocates to achieve the absolute protections desired, various social frameworks have

been articulated as the most effective means for fully protecting sacred sites.31

This section will identify two distinct strategies for achieving change: power contests and

institutionalized entrepreneurship.32

As a strategy of change, institutional entrepreneurship is distinct from exclusively or primarily engaging in conventional power contests, in which ‘whoever has the most (in terms of number or resources) wins, and by winning can impose . . . preferences on other actors.’ By contrast, it engages in ‘constitutive politics.’ Such politics address the shared understandings that constitute the socially intelligible and legitimate actors, categories, rules, and principles for action. . . . In that they constitutive the shared cognitive backdrop of power politics and formal policy-making, taken-for-granted beliefs tend to promote predictable patterns of behavior. However, even when institutionalized, these understandings are not impervious to change. In light of this, institutional entrepreneurship seeks to disrupt taken-for-granted beliefs (or logics) and the linked governance structures (power arrangements) that reflect and manifest them. If entrepreneurs are able to insert new understandings, they may generate new governance structures and policies without necessarily winning power contests.33

In the context of promoting sacred sites protections, several alternative models to

institutionalized entrepreneurship exist, yet, these models are nothing more than different

strategies to win power contests. For example, Peoplehood Models suggest that social

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movements linking the needs of individuals to be recognized as members of larger, legitimate,

rights-holding groups may promote sacred sites protections if advocates contextualized the

collective religious needs of Native Americans in a broader backdrop of other “peoples” needs.

Yet,the Peoplehood Model boils down to an elaborate scheme to win power contests through the

re-conceptualization of Native Americans as not necessarily belonging to distinct social groups

with unique and legitimate needs for religious accommodations. Likewise, Sovereignty Models

aim to win power contests by asserting rights to lands in the public domain which are superior to

the claims of citizens who do not belong to sovereign tribes. Similarly, Property Models attempt

to win power contests by forcing courts to accept new preferences in construing property rights

as containing collective rights rather than individual rights.

Supporting institutionalized entrepreneurship does not require that sacred sites advocates

abandon power contests. Consider the work of Antonio Gramsci,

an Italian neo-Marxist theorist who developed an approach to understanding domination that transcends some of the limitations of traditional Marxist accounts. In examining domination as a combination of both physical coercion and ideological control, Gramsci developed the concept of hegemony, the means by which a system of attitudes and beliefs, permeating both popular consciousness and the ideology of elites, reinforces existing social arrangements and convinces the dominated classes that the existing order is inevitable. After observing the ability of the Italian system to withstand aggressive challenges in the years preceding the ascent of fascism, Gramsci concluded that “when the State trembled a sturdy structure of civil society was at once revealed. The State was only an outer ditch, behind which there stood a powerful system of fortresses and earthworks.”34

To Gramsci, combating the hegemonic view of the world requires more than directly confronting

the state and the dominant classes supporting the state. Gramsci has noted in his distinctions

between “the war of position” and “the war of maneuver,”35 “a social group can, and indeed

must, already exercise ‘leadership’ before winning governmental power (this indeed is one of the

principal conditions for winning such power).” So, to apply Gramsci’s distinctions in methods

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challenging hegemony, institutionalized entrepreneurship equates with the “war of position,”

where sacred sites advocates can gain influence the discourse of ideas without winning power

contests by “inserting new understandings” in the discourse (Gramsci’s “leadership”). Once

these “new understandings” (federal agency protections of sacred sites), then it may be possible

to win the power contests within the hegemony of the current system which currently provides

inadequate protections to sacred sites.

Oscar Guardiola-Rivera proposes a similar strategy for challenging hegemonic

expressions of economic and political power in What if Latin America Ruled the World?36 Rivera

describes the efforts of Bolivia’s indigenous peoples to control the Bolivian government as a

means of deconstructing the hegemonic values of capitalists and other land-owners.37 Rivera first

accounts for the development of this capitalist and Christian hegemony throughout the colonial

5 Sacred sites may also be found on private, state, and tribally owned land. The least amount of protections to sacred

sites are afforded to those found on private lands, whereas tribes usually should be able to control the access and use

of sacred sites on tribally owned lands. Sacred sites found on state lands may be protected under state laws, which

vary by jurisdiction. This paper will focus on the conflicts surrounding the use of federally owned lands which

contain sacred sites. For a broader discussion of general property law arguments promoting sacred sites, see Kristen

A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting A Place for Indians As Nonowners, 52

UCLA L. Rev. 1061 (2005)

6 See generally, Stephen Fleming,Congenial to Almost Every Shade of Radicalism: The Delaware Valley and the

Success of Early Mormonism,17 Religion and American Culture 2, 129-164 (2007) (positing that the Mormon faith

developed from Christianity and pressures to use faith as a mechanism to promote socio-economic success)

7 Peter Zwick, A Redeemable Loss: Lyng, Lower Courts and American Indian Free Exercise on Public Lands, 60

Case W. Res. L. Rev. 241, 244 (2009)

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history of Latin America. Rivera then explains how indigenous people in Bolivia and other

places co-opt the structures of domestic institutions and international law to inspire

the creation of a network of communal solidarities “in which women, the rites, and akhulliku38 served as invisible . . . bonds of solidarity that opposed the homogenizing designs of the global market . . . and its model of individual citizenship. This is a modern indigenity, which rediscovers the legacy of the immemorial inhabitants of the Andes and the Amazon in order to find orientation, collective as well as individual, in the face of an uncertain future.39

8 Id.

9 See Halken, Hillel, If Israel Ceased to Exist, 123 Commentary 6, 30-35 (2007) (explaining that even though

geographic concepts such as the “Diaspora” have played a significant role in the development of Israel, Judaism, as

a religion, does not depend on the continued existence of Israel as a distinct religiously defined nation-state.)

10 Robert Charles Ward, The Spirits Will Leave: Preventing the Desecration and Destruction of Native American

Sacred Sites on Federal Land, 19 Ecology L.Q. 795, 825-832 (1992)

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.

16 Vine Deloria, Jr. 119 Custer Died For Your Sins: An Indian Manifesto. 1988.

17 See generally, Alex Tallchief Skibine, Tribal Sovereign Interests Beyond the Reservation Borders, 12 Lewis &

Clark L. Rev. 1003 (2008)

18 See Cherokee Nation v. State of Ga., 30 U.S. 1, 8 L. Ed. 25 (1831)

19 See Id.

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Successful challenges to hegemonic views which oppress indigenous peoples, therefore,

requires more than direct confrontation of the hegemony. Deconstruction of hegemony requires

simultaneous efforts to reconstruct new values. Institutionalized entrepreneurship offers a

method for dismantling beliefs while replacing them with new ones. By engaging the federal

government internally, before direct conflict erupts, sacred sites advocates may compel federal

agencies to deconstruct the current hegemonic view that marginalizes indigenous religious

20 See generally, Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites

Located on Public Lands, 40 Colum. Hum. Rts. L. Rev. 479 (2009)

21 See generally, Id.

22 Id.

23 Id.

24 Jessica M. Erickson, Making Live and Letting Die: The Biopolitical Effect of Navajo Nation v. U.S. Forest

Service, 33 Seattle U. L. Rev. 463, 469 (2010)

25 See John W. Ragsdale, Jr., Possession: An Essay on Values Necessary for the Preservation of Wild Lands and

Traditional Tribal Cultures, 40 Urb. Law. 903 (2008)

26 See Id.

27 See Id.

28 See generally, David S. Johnston, The Native American Plight: Protection and Preservation of Sacred Sites, 8

Widener L. Symp. J. 443, 2002,

29 Id.

30 See generally Kristen A. Carpenter, The Interests of "Peoples" in the Cooperative Management of Sacred Sites,

42 Tulsa L. Rev. 37 (2006) (explaining that absent a reconceptualization of rights in a way the recognizes

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worldviews while simultaneously establishing new viewpoints respecting and protecting sacred

sites.

The following non-exhaustive analysis of existing legal frameworks from which tribes

may contest federal land use decisions involving sacred sites will provide an overview of a few

legal avenues tribes have used to engage in institutional entrepreneurship and power contests.

First, tribes need to understand how courts have responded to First Amendment claims regarding

”collective rights” that may be superior to “individual rights,” particularly when confronted with the problem

competing public interest in land.. Collective rights in protecting lands, activities, and belief systems essential to the

preservation of a culture should be legally recognized over individual claims to entertainment, sporting venues, and

other recreational and leisure activities.)

31 See generally Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting A Place for

Indians As Nonowners, 52 UCLA L. Rev. 1061 (2005) (discussing property-based legal arguments for recognizing

easements and other interests in federal and private lands containing sacred sites.) ; Kristen A. Carpenter, The

Interests of "Peoples" in the Cooperative Management of Sacred Sites, 42 Tulsa L. Rev. 37 (2006) (discussing

“sovereignty models” as methods of winning power contests to achieve sacred site protection on federal lands.);

Paul Kuruk, Goading A Reluctant Dinosaur: Mutual Recognition Agreements As A Policy Response to the

Misappropriation of Foreign Traditional Knowledge in the United States, 34 Pepp. L. Rev. 629, 633-713 (2007)

(proposing methods for incorporating international norms into domestic legal discourse as an anti-hegemonic

method for institutionalizing new norms.)

32 Erich W. Steinman, Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law

Through Institutional Entrepreneurship, 39 Law & Soc'y Rev. 759, 767 (2005)

33 Id at 767-768.

34 Kimberle Williams Crenshaw (FNf1), Race, Reform, and Retrenchment: Transformation and Legitimation in

Antidiscrimination Law, 12 German L.J. 247, 258 (2011)

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federal land use decisions in order to determine which strategies are most effective in achieving

some protections for threatened sacred sites.

A. First Amendment: Free Exercise Claims

The second clause of the First Amendment forbids the United States Government from

making any law “prohibiting the free exercise” of religion.40 Tribes have sought protection of

sacred sites under this provision.41 The leading Supreme Court cases on Free Exercise Clause

claims once seemed to provide substantial protections against the application of federal laws that

infringed on the rights to practice one’s religion. In Shebert v. Verner, the Supreme Court

declared that “any incidental burden on the free exercise of religion [must] be justified by a

‘compelling state interest . . . .’”42 The case involved an unemployment claim by a Seventh Day

Adventist who was fired for refusing to work on Sunday because it violated his religion.43 The

35 Balakrishnan Rajagopal, International Law and Social Movements: Challenges of Theorizing Resistance, 41

Colum. J. Transnat'l L. 397, 429 (2003).

36 See genrerally, Oscar Guardiola-Rivera, What If Latin America Ruled the World: How the South will Take the

North through the 21st Century (2010) (providing a historical account of the colonization of Latin America in order

to provide alternative perspectives to the current “hegemonic” view of Western history. Rivera describes challenges

to the hegemonic view of capitalism and Christianity’s influence on the region and provides accounts of direct

power struggles and other institutionalized entrepreneurial efforts at reclaiming the historical narrative of Latin

America while charting a course for the future founded on sustainable indigenous values)

37 Id at 322.

38 “a gathering to engage in the communal act of 'chewing' coca” Alan Forsberg, The Wonders of the Coca Leaf,

(http://www.encod.org/info/IMG/pdf/Wonders-of-the-Coca-Leaf.pdf)

39 Oscar Guardiola-Rivera, What If Latin America Ruled the World: How the South will Take the North through the

21st Century, 322 (2010)

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Supreme Court applied “strict scrutiny” to the South Carolina Unemployment Compensation Act

and found that no compelling state interest existed to deny unemployment compensation to the

plaintiff and that the denial of benefits was a burden on the plaintiff’s exercise of religious

freedom.44 Sherbert required the government to use alternative means when a neutral law of

general applicability indirectly burdened religious beliefs unless it could show a compelling

governmental interest in the means chosen.45

In a subsequent case applying strict scrutiny to a neutral law of general applicability, the

Supreme Court ruled that a Wisconsin law requiring students to go to school beyond the eighth

grade law burdened the exercise of religious freedoms of Amish people.46 Importantly, to reach

this conclusion, the Court closely examined the history and culture of the Amish people and

concluded that the “traditional way of life of the Amish is not merely a matter of personal

preference, but one of deep religious conviction intimately related to daily living.” 47 Based on

this analysis, the Court concluded that the religious views and cultural practices of the Amish

people are “inseparable and interdependent.”48

More recently, the Supreme Court ignored the rationales of Sherbert and Yoder. In

Bowen v. Roy, an individual claimed that exercise of his religion was burdened by the

requirement that his daughter obtain a Social Security number to be eligible for governmental

benefits. The Court declared that “Roy may no more prevail on his religious objection the

Government’s use of a Social Security number for his daughter than he could on a sincere

religious objection to the size or color of the Government’s filing cabinets.”49 Because the Social

44 Peter Zwick, A Redeemable Loss: Lyng, Lower Courts and American Indian Free Exercise on Public Lands, 60

Case W. Res. L. Rev. 241, 246 (2009)

45 Sherbert v. Verner, 374 U.S. 398, 407, (1963)

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Security number requirement constituted a matter of internal management of government affairs,

the Court found no burden on the plaintif’s religion unless the government compelled the

violation of a religious belief.50 This became known as the coercion test. 51

The coercion test articulated in Bowen formed the basis for the Supreme Court’s rejection

of a First Amendment Free Exercise Clause claim. In Lyng v. Northwest Cemetery Protection

Association.52 In Lyng, Yurok, Tolowa, and Kurok tribal members contested the construction of a

logging road near Chimney Rock in the Six Rivers National Forest.53 Rather than follow the

reasoning in Sherbert and Yoder to determine whether the road would incidentally burden the

religious beliefs of Yurok, Karok, and Tolowa peoples, the Supreme Court overturned the Ninth

Circuit’s injunction against the road, despite evidence that the U.S. Forest Service had

determined that the construction and use of the logging road would pose a threat to “an integral

and indispensable part of the Indian religious conceptualization and practice.”54 Instead, the

Supreme Court relied on Bowen, determining that the case involved the internal management of

federal lands and applied the coercion test.55 Because the construction of the road would not

require Native Americans to violate its religious beliefs, the First Amendment Free Exercise

Clause claims could not prevent the construction of the logging road.56

The Lyng analysis had been foreshadowed in earlier cases, as courts had become more

accepting of the “centrality” of various sacred sites to the religious beliefs of indigenous groups.

However, the courts had disposed of the challenges on the grounds that the tribal members would

not be compelled to forgo their religious practices under the analysis of the coercion test.

Additionally, courts were concerned that the Establishment Clause should prohibit the kind of

protective relief tribes sought.57 After denying certiorari to several cases prior to Lyng, the

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Supreme Court articulated the barriers of the First Amendment Free Exercise Clause in

providing the protections of sacred sites that tribes had been seeking:

Even if we assume that we should accept the Ninth Circuit's prediction, according to which the G-O road will “virtually destroy the ... Indians' ability to practice their religion,” (citation omitted), the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities-from social welfare programs to foreign aid to conservation projects-will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions.58

Rather than applying Sherbert and Yoder, the Supreme Court extended the Bowen

analysis by explaining:

It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require the government to bring forward a compelling justification for its otherwise lawful actions.59

B. RFRA and RLUIPA: Coercion Confused with Substantial Burden

The decision in Bowen ushered in a rational basis test promoted in Employment Division

v. Smith.60 In Smith, the Supreme Court held that the compelling interest test should not be

applied in a case where the religious conduct seeking protection was proscribed by a facially

neutral law.61 The case involved a First Amendment Free Exercise claim rising from the denial

of unemployment benefits to an individual fired for violating the Oregon law prohibiting the

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ingestion of peyote. The claimant argued that the denial of benefits amounted to an undue burden

on the claimant’s religious beliefs.62 The Supreme Court held that the Constitution requires only

a rational basis for laws of general applicability which burden the free exercise of religion

because a compelling governmental interest test “would open the prospect of constitutionally

required religious exemptions from civic obligations of almost every conceivable kind.”63

Rather than have the courts make difficult determinations regarding the centrality of a

belief to a religion, the Supreme Court once again instructed Congress to act.

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.64

Congress responded to the Supreme Court’s directions in Smith by attempting though

statutory enactment to restore the strict scrutiny test in free exercise cases65 by passing the

Religious Freedom and Restoration Act of 199366 (hereinafter RFRA). RFRA provides:

(a) FindingsThe Congress finds that--(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;(3) governments should not substantially burden religious exercise without compelling justification;(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.(b) PurposesThe purposes of this chapter are--(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee

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its application in all cases where free exercise of religion is substantially burdened; and(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.67

In City of Boerne v. Flores, the Supreme Court ruled that RFRA was unconstitutional as

applied to the States because it exceeded the scope of the First Amendment as applied to the

states by the Fourteenth Amendment.68 As of now, RFRA still applies to the federal

government.69

However, RFRA has not been applied by the courts as Congress intended.70 Congress

“adopted the constitutional definition of ‘religion’ but deviated from the Court’s jurisprudence

by re-establishing the compelling interest test for evaluating free exercise claims” 71 Such

compelling interests must be achieved by the least restrictive means possible.72 The act stated

that “[g]overnment may substantially burden a person’s exercise of religion only if it

demonstrates that application of the burden to the person (1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.”73

Congress acted to clarify RFRA after the Boerne decision by passing the Religious Land

Use and Institutionalized Persons Act [hereinafter RLUIPA] to reinstate the compelling interest

requirement as applied to the states and also to expand on the definition of “religion.” RLUIPA

defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central

to, a system of religious belief.”74 RLUIPA appears to apply to the federal government, as well as

the States, as it language provides that “no government shall impose a substantial burden on the

religious exercise of a person residing in or confined to an institution.”75 A subsequent section of

RLUIPA appears to expressly apply to the federal government and its agencies by providing:

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B) for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.76

After the passage of both RFRA and RLUIPA, it appeared as if Congress had acted to

sufficiently protect Native American religious freedom claims in sacred sites contexts. Congress

had seemingly acted to statutorily require the courts to apply the Sherbert/Yoder lines of analysis

to such claims. Under this analysis, an “incidental burden” on the exercise of religion by laws of

general applicability may only be valid if the laws met “strict scrutiny.” Congress had defined

“strict scrutiny” to require a law to serve a compelling governmental interest through the means

least restrictive to the exercise of religion.77 While Congress was careful to spell out the

definition of “strict scrutiny,” it did not define what activities met the threshold requirement of a

“substantial burden” on religious beliefs. Instead, Congress merely accepted the prior judicial

definition of “substantial burden” as defined by court precedent.78

The lack of a congressionally mandated definition of “substantial burden” has turned out

to be a fatal flaw in RFRA from the perspective of a sacred sites protection advocate. The

Supreme Court in Sherbert and Yoder never explicitly defined what constitutes a “substantial

burden.”79 The reasoning in the opinions, however, strongly suggests that any “incidental

burden” on religion constitutes a “substantial burden.”80

The San Francisco Peaks wastewater snow case addressed the application of RFRA after

the passage of the RLUIPA. The Arizona Snowbowl Resort (hereinafter “Snowbowl”) resort

operated a ski resort on federal public lands under a special use permit authorized by the United

States Forest Service. Snowbowl had planned to use artificial snow made from reclaimed

wastewater.81 The Ninth Circuit District Court rejected the claim that the plan violated RFRA.82

A three judge panel found that the plan would “impose a burden on the religious exercise of all

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four tribes” who viewed the site as sacred.83 The RFRA victory was short-lived. An en-banc

opinion of the Ninth Circuit overturned the three-judge panel based on their understanding of

what constituted a “substantial burden.” The Ninth Circuit majority defined a “substantial

burden” to exist

[W]hen individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder). Any burden imposed on the exercise of religion described by Sherbert and Yoder is not a “substantial burden” within the meaning of RFRA, and does not require the compelling interest set forth in those two cases.84

While the Ninth Circuit was correct to look at Sherbert and Yoder for guidance in

determining what constitutes a “substantial burden,” the court should have considered the

reasoning in Yoder more carefully before declaring its current substantial burden test. The Ninth

Circuit dismissed the RFRA claims because

[T]he only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities. To plaintiffs, it will spiritually desecrate a sacred mountain and will the decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment-serious though it may be-is not a ‘substantial burden’ on the free exercise of religion. 85

In both Navajo Nation and Yoder, the claimants demonstrated the “inseparable and

interdependent” nature of the practice to viability of the religion and the culture. In Yoder, the

Amish faith could not survive if burdened by the government’s interest in educating children.

Likewise, in Navajo Nation, the Navajo and Hopi culture could not survive if burdened by the

government’s interest in permitting an artificial snow machine. Rather than recognize this

similarity and employ the compelling government interest test achieved by the least restrictive

84 Navajo Nation , 535, F.3d 1058, 1070 (9th Cir. 2009).

85 Id.

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means that RFRA requires, the Ninth Circuit opted to employ what appears to be more

identifiable as Lyng’s use of the Bowen coercion test as its understanding of the “substantial

burden” test in Navajo Nation.86 The Ninth Circuit notes that RFRA did not overturn Lyng, but

the dissent argues that the majority’s construction of what constitutes a substantial burden is

inconsistent with the RFRA and RLUIPA.

Despite Congressional efforts to statutorily extend the religious exercise protections that

the Lyng court required in order to employ heightened scrutiny, courts have been reluctant to

extend the same religious protections to practitioners of indigenous religions as have been

recognized to Western religions. It seems that Western religions involve religious themes with

which judges are familiar and thus more comfortable protecting. Therefore, power contests

relying on religious free exercise claims in contentious litigation are unlikely to succeed, despite

the passage of RFRA and RLUIPA. Rather than engaging in such power contests, tribes should

look to other existing legal frameworks to engage in institutional entrepreneurship with agencies

in seeking favorable federal land use policies recognizing the need for some protection of sacred

sites.

C. Establishment Clause Concerns

The Establishment Clause of the 1st Amendment provides that “Congress shall make no

law respecting an establishment of religion . . . .”87 The Supreme Court, in Lemon v. Kurtzman,

established what has become known as the Lemon test to determine if a law violates the

Establishment Clause.88

87 U.S.C.A Const. Amend. I

88 Lemon v. Kurtzman, 403 U.S. 602, 612-13(1971).

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Under the Lemon test, governmental action does not violate the Establishment Clause if it (1) has a secular purpose, (2) its ‘principal or primary effect . . . neither advances nor inhibits religion,’ and (3) it does not ‘foster “an excessive government entanglement with religion.” 89

The Establishment Clause arises in sacred sites protection cases where the government may act

to protect a site, and thereby violate the prongs of the Lemon test by acting in a way that

promotes the religions of Native Americans.90 The Lemon test consists of several prongs.

The secular purpose prong does not prohibit laws that benefit religions, “so long as the

government’s action was not motivated by wholly religious purposes91, and the asserted secular

purpose was sincere.”92 The “principal or primary effect” prong of the Lemon test requires the

government activity to advance religion.93 Justice O’Connor’s endorsement test now replaces the

first two prongs of the Lemon test.94 Under O’Connor’s endorsement test, the court must

determine if an objective person could reasonably conclude that a governmental action

40 U.S.C.A Const. Amend. I

41See Sequoyah v. Tennessee Valley Auth., 620 F.2d 1159 (6th Cir. 1980) ; Lyng v. Nw. Indian Cemetery Protective

Ass'n, 485 U.S. 439 (1988)

42 Sherbert v. Verner, 374 U.S. 398, 403 (1963) (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).

43 Sherbert v. Verner, 374 U.S. 398, 399, (1963)

46 See Wisconsin v. Yoder, 406 U.S. 205, (1972

47 Wisconsin v. Yoder, 406 U.S. 205, 216 (1972).

48 Wisconsin v. Yoder, 406, U.S. 205, 215 (1972).

49 Bowen v. Roy, 476 U.S. 693, 700(1986)

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“endorses” a religion by appearing to prefer one religion over another. The final prong of the

Lemon test, the entanglement prong, “considers ‘the character and purposes of the institutions

that are benefited, the nature of the aid that the State provides, and the resulting relationship

between the government and religious authority.’”95

Establishment Clause concerns have risen in two notable cases involving sacred sites

protections. Perhaps the most well-known case is Bear Lodge Multiple Us Ass’n v. Babbitt,

50 Id.

51 Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on Public

Lands, 40 Colum. Hum. Rts. L. Rev. 479, 491 (2009)

52 Id.; Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 451-452 (1988).

53 Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 441-442 (1988).

54 David S. Johnston, The Native American Plight: Protection and Preservation of Sacred Sites, Widener L. Symp.

J., 2002, at 443, 449 (quoting Lyng, 448 U.S. at 442 (1988)).

55 Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 453 (1988)

56 Id.

57 See generally Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 Mont. L. Rev. 451, 468 (1995);

Sequoyah v. Tennessee Valley Auth., 620 F.2d 1159, (6th Cir. 1980), cert. denied, 449 U.S. 953 (1980) (asserting

that Cherokee claims of the proposed Tellico Dam destroying sacred sites and impairing their ability to free exercise

their religion were not central to the Cherokee religious beliefs, but just a “personal preference” regarding the

preservation of historical and cultural spaces.); Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980) (explaining that

the centrality of Rainbow Bridge to the Navajo religion is accepted, the burden on the exercise recognized, but

holding that the relief sought was not justified because the burden on religion by the tourism regulations did not

compel the Navajo to abandon their religious beliefs and because the relief sought would likely violate the

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where the National Park Service had instituted a voluntary rock climbing ban at Bear Lodge,

known as Devil’s Tower to recreational climbers who frequent the area to scale the sheer cliffs of

the landmark.96 The federal district court noted that the

effects and entanglement prongs of the Lemon test were met but stated that if the National Park Service had chosen to deprive individuals of their ‘legitimate use of the monument in order to enforce the right to worship,’ that would amount to impermissible promotion of religion.97

Establishment Clause.); Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 464 U.S. 956 (1983), and cert.

denied, 464 U.S. 1056 (1983) (finding that the construction of a ski resort on the San Francisco Peaks, sacred

mountains to the Navajo and Hopi, was merely offensive and not a compulsion to abandon religious practices nor a

penalty for practicing a particular religious faith); Crow v. Gullet, 541 F. Supp. 785, 794 (D.S.D. 1982), aff'd, 706

F.2d 856 (8th Cir. 1983), cert. denied, 464 U.S. 977 (1983) (similarly finding that the regulations of Bear Butte did

not force the Lakota and Cheyenne tribal members to abandon their religious beliefs, even those beliefs were

recognized to be central tenets and burdened by governmental interests. Establishment Clause concerns with the

remedy of exclusion and recognition of collective religious rights at Bear Butte were also noted in the rationale for

denying the Free Exercise claim.)

58 Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 451-52, 108 S. Ct. 1319, 1327, 99 L. Ed. 2d 534

(1988) (emphasis added)

59 Id. at 450-451.

60 Peter Zwick, A Redeemable Loss: Lyng, Lower Courts and American Indian Free Exercise on Public Lands, 60

Case W. Res. L. Rev. 241, 250 (2009)

61 See Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) (where rational basis test

was applied in the context of a Free Exercise claim contesting the application of a law of general applicability

prohibiting peyote use in all circumstances as justification for the denial of unemployment benefits to a Native

American religious practitioner.)

62 Id.

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In the dicta, it was noted that had the ban been mandatory, it would have violated the

Establishment Clause, because a mandatory ban would require the government to “endorse” the

Lakota peoples’ religion.98

In a similar case, Natural Arch & Bridge Society v. Alston, a federal district court

determined that another voluntary ban proffered by the National Park Service did not violate the

63 Id at 888-889

(If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to

all actions thought to be religiously commanded. Moreover, if “compelling interest” really means

what it says (and watering it down here would subvert its rigor in the other fields where it is

applied), many laws will not meet the test. Any society adopting such a system would be courting

anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs,

and its determination to coerce or suppress none of them. Precisely because “we are a

cosmopolitan nation made up of people of almost every conceivable religious preference,”

Braunfeld v. Brown, 366 U.S., at 606, 81 S.Ct., at 1147, and precisely because we value and

protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as

applied to the religious objector, every regulation of conduct that does not protect an interest of the

highest order. The rule respondents favor would open the prospect of constitutionally required

religious exemptions from civic obligations of almost every conceivable kind-ranging from

compulsory military service, see, e.g., Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28

L.Ed.2d 168 (1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to health and

safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763

P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark.

927, 377 S.W.2d 816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279

U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U.S.

569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); to social welfare legislation such as minimum wage

laws, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 105 S.Ct. 1953,

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Establishment Clause.99 The Rainbow Bridge National Monument stands as the world’s largest

natural bridge. Local Native Americans revere the land bridge as a sacred site.100 The voluntary

ban did not violate the Constitution because of its secular purpose of educating the public of

diverse cultural practices by preserving the “historical, social, and cultural practices of Native

Americans.”101 If the ban had been mandatory, it may have violated the Establishment Clause;

85 L.Ed.2d 278 (1985), child labor laws, see Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438,

88 L.Ed. 645 (1944), animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City

of Hialeah, 723 F.Supp. 1467 (SD Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179,

appeal dism'd, 336 U.S. 942, 69 S.Ct. 813, 93 L.Ed. 1099 (1949), environmental protection laws,

see United States v. Little, 638 F.Supp. 337 (Mont.1986), and laws providing for equality of

opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U.S. 574, 603-604,

103 S.Ct. 2017, 2034-2035, 76 L.Ed.2d 157 (1983). The First Amendment's protection of religious

liberty does not require this.)

64 Id. at 890.

65 Peter Zwick, A Redeemable Loss: Lyng, Lower Courts and American Indian Free Exercise on Public Lands, 60

Case W. Res. L. Rev. 241, 251(2009)

66 Pub. L. No. 103-141, § 2, 107 Stat. 1488 (codified at 43 USC § 2000bb)

67 42 U.S.C.A. § 2000bb (West)

68 City of Boerne v. Flores, 521 U.S. 507, 536 (1997).

69 See City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (where only its application to states was overturned

because the 14th Amendment did not provide the federal government with sufficient power over the states to support

the application of RFRA as applied to states; RFRA’s application against the federal government was, however,

viable under the Constitution).

70 See Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on

Public Lands, 40 Colum. Hum. Rts. L. Rev. 479, 492-496 (2009) (explaining how the courts have not applied the

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however the voluntary ban did not coerce tourists into practicing Native American religious

practices regarding the sacredness of the bridge.102 The court also found no excessive

entanglement with religion because the National Park Service did not engage in any of the

Native American religious practices and also because the signs and brochures explaining the

voluntary ban were part of the agency’s informational and educational services.103

standards set out in RFRA as Congress intended).

71 Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on Public

Lands, 40 Colum. Hum. Rts. L. Rev. 479, 492 (2009)

72 Id.

73 42 U.S.C.A. § 2000bb-1(b) (West).

74 42 U.S.C 2000cc-5(7)(A)

75 42 U.S.C.A. § 2000cc-1 (West)

76 42 U.S.C.A. § 2000cc-5 (West)

77 See Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on

Public Lands, 40 Colum. Hum. Rts. L. Rev. 479, 492-496 (2009) (explaining how the courts have not applied the

standards set out in RFRA as Congress intended).

78 See Id.

79 See Id.

80 See id.

81 Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1030-31 (9th Cir. 2007) on reh'g en banc, 535 F.3d 1058 (9th

Cir. 2008)

82 See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir. 2008) (explaining the procedural history of

the case and the district court’s decision).

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The cases involving the application of the Establishment Clause seem to set an outer limit

that governmental actions may reach in attempts to protect sacred sites before running afoul of

the Constitution. In both of the cases described above, Bear Lodge and Natural Arch & Bridge,

the side advocating for the protections of sacred sites “won.” Yet, in both cases, the limitations

on access to the federal lands were made in a voluntary fashion. If Native Americans were

engaged in a spiritual ceremony at either Bears Lodge or Rainbow Bridge and selfish tourists

83 Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1043 (9th Cir. 2007) on reh'g en banc, 535 F.3d 1058 (9th Cir.

2008)

86 See Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on

Public Lands, 40 Colum. Hum. Rts. L. Rev. 479, 492-496 (2009) (explaining how the courts have not applied the

standards set out in RFRA as Congress intended).

89 Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on Public

Lands, 40 Colum. Hum. Rts. L. Rev. 479, 450 (2009) (quoting Lemon, 403 U.S. at 612-613).

90 Id.

91 Id (citing Lynch v Donnelly, 465 US 668, 680-685 (1984); Everson v. Noard of Educ, 330 U.S. 1 (1947);

Alleghany County v. ACLU, 482 U.S. 573 (1989)).

92Id (citing McCreary County v. ACLU, 545 U.S. 844 (2005).

93 Id (citing Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335

(1987).

94 Id (citing Lynch v. Donelly, 465 U.S. 669, 690 (1984)).

95 Id (citing Lemon, 403 U.S. at 615 (1971)).

96 175 F.3d 814 (10th Cir. 1999)

97Bear Lodge Multiple Use Ass'n v. Babbitt, 2 F. Supp. 2d 1448, 1454 (D. Wyo. 1998), aff’d on other grounds, 175

F.3d 814 (10th Cir. 1999).

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arrived determined to engage in recreational activities, the law would not prevent the tourists

from disrupting the religious activities of the Native Americans. The very real possibility (and

actual occurrence104) of such scenarios leaves many advocates longing for more substantial

sacred site protections on federal lands.

Perhaps the Establishment Clause does not provide such a barrier to more restrictive

governmental actions limiting access to sacred sites on federal lands. In 2007, the Ninth Circuit

heard a case where the United States Forest Service had instituted a permanent mandatory ban on

climbing at Cave Rock, a site of religious significance to the Washoe Indians.105 Recreational

rock climbers had been climbing the area for twenty years. During this time, the climbers had

drilled many climbing bolts into the rock (as climbers had done at Devil’s Tower) and installed a

concrete floor in the cave.106 The United States Forest Service claimed that neither of these

98 Id. at 1456.

99 Natural Arch & Bridge Soc'y v. Alston, 209 F. Supp. 2d 1207, 1225 (D. Utah 2002) aff'd sub nom. Natural Arch

And Bridge Soc'y v. Alston, 98 F. App'x. 711 (10th Cir. 2004)

100 Id at 1210-15.

101 Id. at 1224.

102 Id. at 1225.

103 Id. at 1226 (noting that the NPS efforts to accommodate tribal religious practices was “incumbent upon the park

to do so to fulfill its important trust responsibilities.”)

104 See Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980) (“Specifically, plaintiffs assert that tourists visiting

the Monument desecrate the area by noisy conduct, littering and defacement of the Bridge and that the presence of

tourists prevents plaintiffs from holding ceremonies near the Bridge.”)

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practices was ever condoned by the agency.107 Once the agency had determined that Cave Rock

could be included in the National Register of Historical Places, it implemented a new

recreational policy permitting only “non-invasive recreation consistent with the historic

period.”108 The approved recreational activities did not include rock climbing. The new policy

caused the Access fund, a group of rock-climbing enthusiasts, to challenge the mandatory

climbing ban on Establishment Clause grounds.109

The Ninth Circuit found that the mandatory ban did not violate the Establishment

Clause.110 In its decision, the Ninth Circuit distinguished Access Fund from Bear Lodge by

noting that climbing had been embraced by the governmental agency at Devil’s Tower in Bear

Lodge, whereas the agency had never endorsed the climbing in question at Access Fund.111

Because Cave Rock’s climbing ban had a secular purpose, to preserve the cultural and historical

integrity of the site, the ban on climbing did not run afoul of the Establishment Clause.112

The tribes’ decisions to work with federal agencies to implement voluntary and

mandatory bans on certain public uses of federal lands has not only resulted in favorable

protections of sacred sites, but these protections have proven to be insulated from challenges by

recreational enthusiasts.113 The importance of working with federal agencies to create sacred sites

protections rather than resorting to litigation after an agency determination on the scope of

protections will be explored after an exploration of the other legal frameworks which may be

used to accomplish sacred site protections.

D. AIRFA and Executive Order 13007

110 Id. at 1046.

111 Id.

112 Id.

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The American Indian Religious Freedom Act114 [hereinafter AIRFA] passed in 1978.

Congress intended AIRFA to address the historical tendency of federal agencies to ignore the

religious needs of Native Americans when those agencies made decisions regarding the use of

federal lands.115 Congress acted to ensure that courts afforded the same protections to Native

American religions as they did for other religions.116 AIRFA also aimed to end the long history

of the federal government actively preventing Native Americans from practicing their own

religions. The act aimed to “protect and preserve for the American Indians their inherent rights

of freedom to believe, express, and exercise the traditional religions . . . including but not limited

to access to sites .117 While the act required the President and federal agencies to “evaluate their

policies and procedures in consultation with native traditional religious leaders in order to

determine appropriate changes necessary to protect and preserve Native American religious

cultural rights and practices,” AIRFA did not create procedures or remedies for those wronged

by federal agencies who do not follow the mandate.118 For these reasons, AIRFA fails to achieve

its purpose. AIRFA provides no private right of action, relegating it to the realm of a joint

resolution rather than a law because it serves as merely a statement of congressional intent.119

The concern about AIRFA’s ineffectiveness led to increased demands for the President to

issue an Executive Order to direct federal agencies’ action with regard to plans for federal lands

containing sacred sites. In 1996, President Clinton issued Executive Order 13007120, which

provides:

Section 1. Accommodation of Sacred Sites. (a) In managing Federal lands, each executive branch agency with statutory or administrative responsibility for the management of Federal lands shall, to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such

120 Exec. Order No. 13007, 61 Fed/ Reg/ 26771 (May 24 1996).

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sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites.121

President Clinton issued Executive order 13007 after the first round of litigation over the Devil’s

Tower climbing ban.122 Pursuant to the executive order, Clinton’s Attorney General Office issued

a Memorandum Opinion to the Secretary of Interior establishing its views on the effect of the

Establishment Clause on federal land managers, specifically stating that a commercial ban on

climbing in the Devil’s Tower case did not violate the Establishment Clause, contradicting the

judicial opinion which had suggested that such a ban may violate the Establishment Clause.123

Perhaps this memorandum influenced the courts reasoning in the Ninth Circuit Cave Rock case,

where a mandatory ban did not violate the Establishment Clause.124

While AIRFA and Executive Order 13007 do not go so far as authorizing the exclusion

of the public from federal lands containing sacred sites, they do contain substantial guidance to

federal agencies in developing federal land management plans.125 After exploring the

background, strategy, and tactics employed in two sacred sites controversies, the Navajo

Nation wastewater snow case, and the Devil’s Tower voluntary climbing ban case (which have

already been explored in this paper regarding the application of the legal frameworks), this paper

will discuss why sacred sites protection advocates are best served in their efforts when they take

proactive, preemptive steps to work with federal agencies to generate favorable outcomes in

sacred sites controversies on public lands.

E. National Historic Preservation Act

125 Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on Public

Lands, 40 Colum. Hum. Rts. L. Rev. 479, 503-04 (2009)

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As Access Fund and the other cases discussed above indicate, the Establishment Clause

often arises in situations where the National Historic Preservation Act [hereinafter NHPA]

applies. “The purpose of the National Historic Preservation Act is to encourage the preservation

and protection of America’s historic and cultural resources.”126 Native American Tribes and

Native American Reservations were included in amendments to NHPA in 1992.127 NHPA

extends protections to sites registered as a National Historic Landmark, which are defined as

sites that constitute “any prehistoric or historic district, site, building, structure, or object

included in, or eligible for inclusion in the National Register, including artifacts, records, and

material remains related to such a property or resource.”128

Properties registered as a National Historic Landmark require “the government to create a

plan” before the project can continue in order to ensure the integrity of the landmark.129

Properties not designated as National Historic Landmarks may still require a plan under NHPA if

the activity in question could potentially disturb the integrity of a nearby National Historic

Landmark.130 Tribes play a special role in this process by statute, known as a Section 106

consultation.131 Section 106 consultations ensure the protection of “traditional cultural

property.”132 Therefore, even if a proposed project occurs on private land, if the project receives

federal funding and may potentially disturb the National Historic Landmark, NHPA applies.133

Additionally, the NHPA directs the Secretary of the Interior to

establish a program and promulgate regulations to assist Indian tribes in preserving their particular historic properties. The Secretary shall foster communication and cooperation between Indian tribes and State Historic Preservation Officers in the administration of the national historic preservation program to ensure that all types of historic properties and all public interests in such properties are given due consideration, and to encourage coordination among Indian tribes, State Historic Preservation Officers, and Federal agencies in historic preservation planning and in the identification, evaluation, protection, and interpretation of historic properties.134

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The NHPA includes provision enabling tribes to assume responsibility for historic sites that

otherwise would be controlled by the State.135 Also, the NHPA directs federal agencies to abide

by Executive Order 13006 when developing plans for federal lands.136

The application of NHPA arose in a dispute regarding the construction of a shooting

range four miles from the base of Bear Butte, a National Historic Landmark.137 The tribes sought

an injunction against the City of Sturgis and the Industrial Expansion Corporation under NHPA

because the shooting range would affect the historic and cultural preservation of Bear Butte,

even though the developers planned to build on private land.138 The developers were forced to

abandon their plans after HUD determined that the shooting range would not “generate necessary

public benefits.”139 The district court granted the injunction “as a result of regulatory action taken

by HUD under the CDBG [Community Development Block Grant] program for reasons

unrelated to the merits of the Tribes’ RFRA and RLUIPA claims. . . .”140

When tribes seek to protect sacred sites under NHPA claims, courts often are faced with

the issue of whether or not extending protections under NHPA will violate the Establishment

Clause. Consider Cholla Ready Mix, Inc. v. Civish, which involved a dispute over Woodruff

Butte, a site of religious, cultural, and historic significance to the Hopi, Zuni, and Navajo

(Dine’).141 Because Woodruff Butte was eligible for inclusion on the National Register of

Historic Places, the state of Arizona created a commercial source policy prohibiting the purchase

of highway materials mined from the area.142 The owners of the butte unsuccessfully challenged

Arizona’s policy on Establishment Clause grounds.143 The Ninth Circuit rejected the argument,

citing the secular purposes of Arizona in preserving the historical value of the religious site.144

141 Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th Cir. 2004)

142 Id. at 972-973.

143 Id. at 972-973, 975.

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While some advocates of sacred sites protection see the NHPA as the most effective legal

instrument for sacred sites protection, others are quick to point out its limitations.145 The chief

concern emphasizes that protecting sacred sites because of their “historic” value and not because

of their religious significance “trivializes the importance of the site.”146 The NHPA requires that

the site be of historic value.147 In order for sacred sites to be included on the National Register of

Historic Places, the location of the sites must be disclosed to the general, and evidence of its

historic value must be presented.148 This poses problems for sacred sites protection, given the

public nature of the disclosure and the evidentiary requirements to be recognized as a historic

site.149 Some, if not many indigenous cultures’ religious practices are not intended to be publicly

shared with outsiders.150 Disclosure may run afoul of cultural tradition.151 Also, disclosure itself

may generate the risk of more public exposure of sacred sites, thereby having an adverse impact

on the site because the NHPA does not authorize the exclusion of the public for religious and

cultural reasons.152 Additionally, many sacred sites are not characterized by distinct landmarks

with distinct and recorded historical legacies.153 Therefore, many sacred sites may never be

eligible for inclusion in the National Register of Historic Places.

Yet, the NHPA offers an avenue of protection to tribes that are not on the list of federally

recognized tribes. Whether a tribe should be treated on a government-to-government relationship

with the federal government is a political question “not subject to judicial review154.” “The Ninth

Circuit has held that having cultural and religious ties to an area suffering an environmental

impact can be a sufficient basis to establish injury-in-fact for standing purposes. . .,”even if the

party is a non-federally recognized tribe.155 Therefore, NHPA offers an avenue of federal

protection of sacred sites to tribes who could not otherwise sustain standing challenges.

F. National Environmental Policy Act

144 Id. at 975.

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Another legal route for protecting sacred sites is found under the National Environmental

Policy Act [hereinafter NEPA].156 Under NEPA, the federal government must “study, develop,

and describe appropriate alternatives to recommend course of action in any proposal which

involves unresolved conflicts concerning alternative uses of available resources.”157 NEPA does

not contain a private cause of action; the cause of action exists under the Administrative

Procedures Act [hereinafter APA], which entitles a person judicial review to a person who can

establish that they “suffer[ed] a legal wrong because of agency action.”158 The “arbitrary and

capricious” standard of review often applies to many agency decisions, including those under

NEPA.159 The arbitrary and capricious standard does not always apply to NEPA-based claims.

For example, if an agency disregarded NEPA entirely, a tribe may succeed in achieiving a

favorable land-use decision because prior decisions were not valid under NEPA.160 Therefore,

sacred sites protection advocates must stay abreast of agency developments regarding the

application of NEPA so that they may influence the original decision of the agency.

Tribes need to participate heavily in the commenting period for the Environmental

Impact Statement (EIS). The federal agency must acquire the input of a diverse group of

stakeholders. During EIS drafting process, the agency may make formal efforts to seek tribal

input. By sending official letters, printing public notices, and making public announcements

regarding the development plans of federal lands, federal agencies create a public record of its

drafting efforts. If a tribe ignores this process, it can be difficult to overcome in the power

contest of subsequent litigation.161 Additionally, an agency may issue a Finding of No Significant

Impact (FONSI).

Finding of no significant impact means a document by a Federal agency briefly presenting the reasons why an action, not otherwise excluded (§ 1508.4), will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared.162

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If an agency issues a FONSI, it does not have to proceed development without an ESI. Simply

by having working relationships or even better, political allies in agencies responsible for making

federal land-use decisions, controversy may be avoided and tribal interests may be protected

from the onset.163 Other environmental and land use acts may also serve as a tool to achieve

sacred site protection.164

III. Case Inquiry: Snowbowl Wastewater Snow and Devil’s Tower Climbing Ban

A. No Success at Snowbowl: Litigation Loses as a Sacred Sites Strategy

The Hopi and the Navajo (Dine’) hold the San Francisco Peaks [hereinafter “Peaks”]

sacred.165 The Hopi believe that the “Creator uses emissaries to assist in communicating with

mankind. The Hopis know the emissaries as “Kachinas” and regard them as spiritual beings. The

Hopis believe that for about six months each year, commencing in late July or early August and

extending through mid-winter, the Kachinas reside at the Peaks.”166 In addition to being the home

of the Kachinas, the Peaks serve as a destination for pilgrimages and many religious practices.

To the Dine’ (Navajo), the Peaks serve as one of four sacred mountains delineating the

traditional boundaries of Dinetah (Navajo homeland).167 The Peaks are “revered as the physical

embodiment of one of the Holy Ones or Navajo gods, with various parts forming the head,

shoulders, and knees of a body reclining and facing to the east, and the trees, plants, rocks, and

earth making up the skin.” 168

Because the Peaks are central to the Hopi and Dine’ religion and culture, the use of the

land has been an issue of conflict. In 1937, part of the Peaks was first designated as Arizona

Snowbowl Resort.169 The skiing on the land began after the construction of the lodge. The

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original lodge was lost to a fire in 1952 and a new lodge was constructed in 1956.170 A chairlift

was added in 1962. In April of 1977, the United States Forest Service authorized the permit to

operate Snowbowl to be transferred t the Northland Recreation Company.171 In July 1977, the

new permit holder submitted a plan to the United States Forest Service to build new lodges,

construct more parking spaces, expand the ski slopes, and add more ski lifts.172 The United States

Forest Service solicited public opinion on a draft Environmental Impact Statement, pursuant to

NEPA, based on six plans for Snowbowl expansion.173 While the record indicates that the United

States Forest Service made “special efforts to solicit views from the Hopi and the Navajos,”174 it

105 See Access Fund v. U.S. Dept. of Agric., 499 F.3d 1036 (9th Cir. 2007)

106 Id. at 1040.

107 Id. at 1041.

108 Id.

109 Id. at 1042.

113 See generally, Bear Lodge, 175 F.3d 814 (10th Cir. 1999); Natural Arch & Bridge, 98 F. App’x 711 (10th Cir.

2004); Access Fund, 499 F.3d 1036 (9th Cir. 2007) (where the plaintiffs opposing bans on certain public use of

federal lands had difficulty proving an injury in fact to establish standing.)

114 American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341, 92 Stat. 469 (codified in part at 42 U.S.C.

§ 1996) 

115 Robert Charles Ward, The Spirits Will Leave: Preventing the Desecration and Destruction of Native American

Sacred Sites on Federal Land, 19 Ecology L.Q. 795, 816 (1992)

116 Id.

117 Id.

118 Id.

119 Id.

121 Id.

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appears that those efforts did not result in substantial collaboration between the federal agency

and the tribes.

Instead, the “Navajo Medicinemen’s Association, the Hopi tribe, and nearby ranch

owners filed several claims, including one under the Free Exercise Clause of the First

Amendment.”175 In Wilson v. Block, the United States Court of Appeals for the D.C. Circuit

disposed of the pre-RFRA Free Exercise claim by finding that the plaintiffs had not 122 Michelle Kay Albert, Obligations and Opportunities to Protect Native American Sacred Sites Located on Public

Lands, 40 Colum. Hum. Rts. L. Rev. 479, 501-02 (2009)

123 Id.

124 See Access Fund, 499 F.3d 1036 (9th Cir. 2007).

126 16 U.S.C.A. §§ 470-470x-6 (West.)

127 Elizabeth G. Pianca, Comment, Protecting Amrerican Indian Sacred Sites on Federal Lands, 45 Santa Clara L.

Rev. 461, 475 (2005).

128 16 U.S.C.A § 470w(5).

129 Karly C. Winter, Saving Bear Butte and Other Sacred Sites, 13 Great Plains Nat. Resources J. 71, 77 (2010)

130 Id.

131 Id.

132 Id.

133 Id.

134 16 U.S.C.A. § 470a (d) (1) (A) (West)

135 16 U.S.C.A. § 470a (d) (West) (discussing the procedures where a tribe may assume responsibility for the

preservation of a historical site.)

136 16 U.S.C.A. § 470h-2 (a)(1) (West) (“The heads of all Federal agencies shall assume responsibility for the

preservation of historic properties which are owned or controlled by such agency. Prior to acquiring, constructing, or

leasing buildings for purposes of carrying out agency responsibilities, each Federal agency shall use, to the

maximum extent feasible, historic properties available to the agency, in accordance with Executive Order No.

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demonstrated that the “government’s proposed land use would impair a religious practice that

could not be performed at any other site.”176 Also, the United States Forest Service had shown

that it had not prevented access for religious purposes to the Snowbowl site.177

In the years following the Wilson decision, divisions over the use of the Peaks for skiing

grew. The local economy and city government of Flagstaff promoted the ski resort, and the

13006, issued May 21, 1996 (61 Fed. Reg. 26071). Each agency shall undertake, consistent with the preservation of

such properties and the mission of the agency and the professional standards established pursuant to section 470a(g)

of this title, any preservation, as may be necessary to carry out this section.”)

137 N. Cheyenne Tribe v. Jackson, 433 F.3d 1083 (8th Cir. 2006)

138 Id. at 1084

139 Id. at 1084.

140 Id. at 1086.

145 Karly C. Winter, Saving Bear Butte and Other Sacred Sites, 13 Great Plains Nat. Resources J. 71, 77 (2010)

146 Id.

147 Id.

148 Id.

149 Id.

150 Robert Charles Ward, The Spirits Will Leave: Preventing the Desecration and Destruction of Native American

Sacred Sites on Federal Land, 19 Ecology L.Q. 795, 835-38 (1992).

151 Id.

152 Karly C. Winter, Saving Bear Butte and Other Sacred Sites, 13 Great Plains Nat. Resources J. 71, 78 (2010)

153 Id.

154 Miami Nation of Indians of Ind. v. U.S. Dep’t of Interior, 255 F.3d 342, 347 (7th Cir. 2001) (quoting William C.

Canby, Jr.m American Indian Law in a Nutshell 5 (3d. ed. 1998).

155 Winnemem Wintu Tribe v. U.S. Dept. of Interior, 725 F. Supp. 2d 1119, 1134 (E.D. Cal. 2010)

156 42 USCA §§ 4321, 4331 to 4335, 4341 to 4346, 4346a, 4346b, 4347

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number of visitors to the resort reached 150,000 in peak years.178 Meanwhile, those opposed to

skiing developed activist-oriented strategies aimed at ending the operation of Snowbowl.179 In

2002, Arizona Snowbowl Resort Limited Partnership, Snowbowl’s current owners, developed

and submitted a proposal to use artificial snow made from reclaimed wastewater at Snowbowl.180

By February 2005, a Final Impact Statement and Record of Decision were announced by the

157 42 U.S.C. § 4332 (E)

158 Id. (quoting 5 U.S.C. § 702).

159 See Havasupai Tribe v. United States, 752 F. Supp. 1471, 1490 (D. Ariz. 1990) aff'd sub nom. Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991) (The proper role for the court is to ensure

that the . . .[agency]. . . adequately considered and disclosed the environmental impact of its action, that its decision was not arbitrary and/or capricious); Karly C. Winter, Saving Bear Butte and Other

Sacred Sites, 13 Great Plains Nat. Resources J. 71, 82 (2010)

160 See Sangre de Cristo Dev. Co., Inc. v. United States, 932 F.2d 891, 893 (10th Cir. 1991) (where the Tesuque

Indian Pueblo successfully petitioned the Secretary of Interior to cancel a lease approving the construction of a golf

course on tribal lands. Because the lease did not include an EIS, as required under NEPA, the lease was never valid,

therefore no property interests were vested to the development company.)

161 See Havasupi v. United States, 752 F. Supp. 1471 (EIS under NEPA met the “hard look” requirement, as the

Forest Service had documented a continued effort to elicit information from the Havasupi regarding the religious

protections sought. The Havasupi were noted to have provided several different theories during the EIS process, but

did not :”forcefully present” its concerns in the manner required in an administrative proceeding.)

162 40 C.F.R. § 1508.13

163 See FERC Order: Puget Sound Energy, Inc.,127 FERC P 62174 (F.E.R.C.), 64481, 2009 WL 1549353 (F.E.R.C.)

(where the Snoqualme Tribe appears to have lost a “power contest” in efforts to halt a proposed hydroelectric

project in the Puget Sound area. The agency noted that Snoqualme lost its RFRA claim in the Ninth Circuit and that

the Snoqualme tribe did not fully participate in the administrative planning procedures prior to seeking relief on

administrative appeal.)

164 See U.S. Dept of Int. v. Vulcan Power Co., 178 IBLA 210 (I.B.L.A.), 211, 2009 WL 5227522 (I.B.L.A.)

(explaining that the Forest Service is required to approve all leases on its lands, therefore a lease to pursue

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Forest Supervisor.181 Again, rather than collaborate with the United States Forest Service in its

deliberations, the opposition to the Snowbowl expansion focused on adversarial tactics, choosing

to file suit on RFRA (and other) grounds.182

Part of the strategy to protect the Peaks from further desecration included adding more

plaintiffs to the complaint. This effort at expanding the class of injured people to include the

Sierra Club, the Center for Biological Diversity, the Flagstaff Activist Network, individual

members of the Havasupi Tribe, Hopi Tribe, and the Navajo Nation, as well as the tribes

themselves, plus the Yavapai Apache Nation and the White Mountain Apache Nation. However,

this tactic may have back-fired in the district court, which noted that the White Mountain Apache

geothermal leases on Mt. Shasta were not valid, as they had not been approved by the Forest Service.)

165 Wilson v. Block, 708 F.2d 735, 738 (D.C. Cir. 1983)

166 Id.

167 Jessica M. Erickson, Making Live and Letting Die: The Biopolitical Effect of Navajo Nation v. U.S. Forest

Service, 33 Seattle U. L. Rev. 463, 479-80 (2010)

168 Id at 480.

169 Navajo Nation v. U.S. Forest Serv., 408 F. Supp. 2d 866, 870 (D. Ariz. 2006) aff'd in part, rev'd in part and

remanded, 479 F.3d 1024 (9th Cir. 2007) on reh'g en banc, 535 F.3d 1058 (9th Cir. 2008) and aff'd, 535 F.3d 1058

(9th Cir. 2008)

170 Wilson v. Block, 708 F.2d 735, 738 (D.C. Cir. 1983)

171 Id.

172 Id.

173 Id.

174 Jessica M. Erickson, Making Live and Letting Die: The Biopolitical Effect of Navajo Nation v. U.S. Forest

Service, 33 Seattle U. L. Rev. 463, 481 (2010) (citing Wilson, 708 F.2d at 738)

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Nation uses water from Ono Lake, which includes reclaimed wastewater, to make snow at its

own ski resort in Sunrise.183

The end result of this adversarial strategy resulted in the Snowbowl plan being approved

by the Ninth Circuit en banc decision.184 A three-judge panel of the Ninth Circuit found that the

use of wastewater snow at Snowbowl violated RFRA because two instances of a substantial

burden were not balanced with the necessary compelling government interest.185 Both instances

connected the contamination of the area with an understanding of the need for the spiritual and

physical integrity of the sacred site.186

The victory for sacred sites protections was short-lived. The Ninth Circuit reviewed the

case en banc, ultimately overturning the panel decision and affirming the district court decision.

The basis for the reversal of the panel’s decision was the interpretation of “substantial burden.”187

As the dissent noted, the majority decision relied on a narrow reading of the Sherbert and Yoder

tests.188 The majority narrowly interpreted the Sherbert substantial burden test to be met only

when individuals are forced to choose between the tenets of their religion and accept a

governmental benefit.189 The Yoder substantial test was likewise narrowly interpreted as being

met only when individuals are coerced to act contrary to their religious beliefs under the threat of

civil or criminal sanctions.190 The Ninth Circuit en banc decision further marginalized the

importance of the claims by declaring that the “only effect of the proposed upgrades is on the

[p]laintiffs’ subjective, emotional religious experience.”191

Sacred sites advocates should find the Ninth Circuit’s misplaced reliance on Lyng

particularly troubling.192According to Justice Fletcher, the Ninth Circuit en banc decision

neglected the purpose of RFRA by using the Lyng analysis.193 Additionally, the decision

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erroneously dismissed RLUIPA claims under the theory the RLUIPA was intended to apply

exclusively to state and local governments.194

Appeals regarding the dismissal of a separate claim based on the wastewater snow’s

public health hazards wait to be heard.195 However, this latest round of litigation proved that a

continuation of the same power contest tactics failed to protect the Peaks. Legitimate legal

arguments can be made demonstrating that the Ninth Circuit has misapplied the post-RFRA law

while mistakenly relying on Lyng for guidance, but the prospects for overturning the United

States Forest Service’s determination remain slim.

The lessons of the failures of the “Save the Peaks” movements may be bitter and hard to

swallow, but they must be learned if advocates for sacred sites protections are to succeed in other

efforts. Perhaps the strategies employed in the Devil’s Tower case offers more hope than the

adversarial litigation employed in the efforts to end the desecration of the San Francisco Peaks.

B. Devil’s Tower Tactics: Pre-emptive Protection of Sacred Sites

This paper has already explored how proponents of recreational climbing at sacred sites

have failed to overturn federal agency decisions banning climbing at sacred sites on

Establishment Clause grounds. The result has been some form of protection of sacred sites

which resulted from the active collaboration of sacred site protection advocates and the federal

agencies responsible for the management of federal lands.

The Devil’s Tower case196 illustrates how institutional entrepreneurship works as a

successful strategy for sacred sites protections not only because it has been replicated elsewhere

(Rainbow Bridge197), but also because it has been extended to include mandatory, rather than

voluntary, climbing bans (Cave Rock198). The preceding discussion on the legal framework of

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sacred sites protection is helpful in that it illustrates why relying on Constitutional and statutory

rights alone do not suffice to protect sacred sites. As the Lyng, Wilson, and Navajo Nation cases

show, courts show reluctance to afford the same type of religious protections to Native American

religions as have been afforded to religions with which judges are more familiar. Despite the

efforts of Congress to instruct courts to equalize the religious freedoms of Native Americans

with RFRA and amendments to AIRFA, those efforts have not translated into favorable court

decisions.

Rather than relishing in conflict with federal agencies, sacred sites advocates are better

off utilizing the structures of the existing legal framework that provide advantages in judicial

review. Because AIRFA and Executive Order 13007 direct federal agencies to “accommodate”

Native American religious practices and also to “avoid adversely affecting the physical integrity

of such sacred sites,”199 sacred sites advocates may be best served by collaborating with federal

agencies to develop favorable determinations. By coordinating with federal agencies under the

mandate of Executive Order 13007 in conjunction with applicable laws such as the NEPA and

the NHPA, sacred sites advocates fair better in efforts to get the federal agencies to produce

favorable determinations. Overturning these determinations requires the satisfaction of a high

burden. Unless procedures are not followed or an agency makes a determination outside the

realm of its expertise, sacred sites protections advocates may use the “arbitrary and capricious”

standard of review in their favor. Given the express direction from the President under Executive

Order 13007, those who challenge agency decisions affording protections to sacred sites are

likely to lose. Opposing parties face obstacles in demonstrating standing requirements necessary

to challenge agency decisions.

175 Id.

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Rather than immediately seeking redress in the courts, sacred sites advocates in the

Devils Tower case, in conjunction with the National Park Service, worked to educate the

recreational climbers about the impact of the climbing on the religious practices of the

surrounding Lakota people. The Tenth Circuit noted the process:

With the assistance of environmentalists, county officials, climbers, and representatives of American Indian communities, NPS issued a draft climbing management plan in July 1994, and made available 1200 copies to interested

176 Wilson, 708 F.2d at 744.

177 Id.

178 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2009)

179 See “Save the Peaks: Prayer Vigil, March, Rally” http://www.indigenousaction.org/save-the-peaks-july-15th-

16th-2010-phoenix-az-prayer-vigil-%E2%80%A2%C2%A0march-%E2%80%A2%C2%A0rally/ (exemplifying

ongoing activist-based resistance to Snowbowl.)

180 Navajo Nation v. U.S. Forest Serv., 408 F. Supp. 2d 866, 870 (D. Ariz. 2006) aff'd in part, rev'd in part and

remanded, 479 F.3d 1024 (9th Cir. 2007) on reh'g en banc, 535 F.3d 1058 (9th Cir. 2008) and aff'd, 535 F.3d 1058

(9th Cir. 2008)

181 Id.

182 Id.

183 Navajo Nation v. U.S. Forest Serv., 408 F. Supp. 2d 866, 890 (D. Ariz. 2006) aff'd in part, rev'd in part and

remanded, 479 F.3d 1024 (9th Cir. 2007) on reh'g en banc, 535 F.3d 1058 (9th Cir. 2008) and aff'd, 535 F.3d 1058

(9th Cir. 2008)

184 535 F.3d 1058 (9th Cir. 2008)

185 Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1039-42 (9th Cir. 2007), rev'd en banc, 535 F.3d 1058 (9th

Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009).

186 Id.

187 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1075 (9th Cir. 2008)

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parties. A public comment period lasted until the end of October 1994, during which NPS received nearly 300 written comments, and also recorded oral comments at six public meetings held around the region. The NPS issued the “Final Climbing Management Plan / Finding of No Significant Impact for Devils Tower National Monument” in February 1995. The FCMP “sets a new direction for managing climbing activity at the Tower for the next three to five years.” Its purpose is “to protect the natural and cultural resources of Devils Tower and to provide for visitor enjoyment and appreciation of this unique feature.” To protect against any new physical impacts to the Tower, the FCMP provides that no new bolts or fixed pitons will be permitted on the Tower, and new face routes requiring new bolt installation will not be permitted. The FCMP does allow individuals to replace already existing bolts and fixed pitons. In addition, the plan calls for access trails to be rehabilitated and maintained, and requires camouflaged

188 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1088 (9th Cir. 2008) (Fletcher, J., dissenting) (referring to the

Majority’s treatment of Sherbert and Yoder substantial burden tests as “restrictive.”)

189 Navajo Nation, 535 F.3d at 1070.

190 Id.

191 Id.

192 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1086 (9th Cir. 2008) (Fletcher, J., dissenting) (“For six

reasons, the majority is wrong in looking to Sherbert and Yoder for an exhaustive definition of what constitutes a

“substantial burden.” First, the majority's approach is inconsistent with the plain meaning of the phrase “substantial

burden.” Second, RFRA does not incorporate any pre-RFRA definition of “substantial burden.” Third, even if

RFRA did incorporate a pre-RFRA definition of “substantial burden,” Sherbert, Yoder, and other pre-RFRA

Supreme Court cases did not use the term in the restrictive manner employed by the majority. That is, the cases on

which the majority relies did not state that interferences with the exercise of religion constituted a “substantial

burden” only when imposed through the two mechanisms used in Sherbert and Yoder. Fourth, the purpose of RFRA

was to expand rather than to contract protection for the exercise of religion. If a disruption of religious practices can

qualify as a “substantial burden” under RFRA only when it is imposed by the same mechanisms as in Sherbert and

Yoder, RFRA would permit interferences with religion that it was surely intended to prevent. Fifth, the majority's

approach overrules fourteen years of contrary circuit precedent. Sixth, the majority's approach is inconsistent with

our cases applying RLUIPA.”)

193 Id.

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climbing equipment, and climbing routes to be closed seasonally to protect raptor nests. The FCMP further provides that “[i]n respect for the reverence many American Indians hold for Devils Tower as a sacred site, rock climbers will be asked to voluntarily refrain from climbing on Devils Tower during the culturally significant month of June.”200

This collaborative strategy increased the protection of the sacred site while also ensuring the

mitigation of the polarizing effects of the conflict between sacred sites advocates and

194 Id; But See 42 U.S.C.A. § 2000cc-1 (West) (noting that prohibition applies to all governments) (emphasis

added)

a) General rule

No government shall impose a substantial burden on the religious exercise of a person residing in

or confined to an institution, as defined in section 1997 of this title, even if the burden results from

a rule of general applicability, unless the government demonstrates that imposition of the burden

on that person--

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(b) Scope of application

This section applies in any case in which--

(1) the substantial burden is imposed in a program or activity that receives Federal financial

assistance; or

(2) the substantial burden affects, or removal of that substantial burden would affect, commerce

with foreign nations, among the several States, or with Indian tribes.

195 ]Associated Press, Group, Others Appeal Ruling in Fake-Snow Suit, The Arizona Republic (Jan. 09, 2011),

http://www.azcentral.com/arizonarepublic/local/articles/2011/01/09/20110109fake-snow-save-the-peaks.html.

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recreational enthusiasts.201 Similar “successes” were achieved at Rainbow Bridge202 and Cave

Rock203.

IV. Pragmatic Solutions to Sacred Site Protection Problems on Federal Lands

The two cases highlighted in Section III can be conceptualized as examples of efforts to

achieve sacred sites protections through winning power contests (Snowbowl) and through

institutionalized entrepreneurship (Devil’s Tower).

In the Snowbowl cases(s), the primary strategy for protecting the Peaks was to engage in

a power contest where the United States Forest Service, Arizona Snowbowl Resort, the local

economy of Flagstaff, and recreational skiers were on one side, and the tribes, individual tribal

members, and environmentalists were on the other side. The sacred sites advocates aimed to

“impose the preference” onto the federal agency, local businesses, and recreational enthusiasts.

196 Bear Lodge Multiple Use Ass'n v. Babbitt, 2 F. Supp. 2d 1448, 1454 (D. Wyo. 1998), aff’d on other grounds, 175

F.3d 814 (10th Cir. 1999).

197 Natural Arch & Bridge Soc'y v. Alston, 209 F. Supp. 2d 1207, 1225 (D. Utah 2002) aff'd sub nom. Natural Arch

And Bridge Soc'y v. Alston, 98 F. App'x. 711 (10th Cir. 2004)

198 Access Fund v. U.S. Dept. of Agric., 499 F.3d 1036 (9th Cir. 2007)

199 Exec. Order No. 13007, 61 Fed/ Reg/ 26771 (May 24 1996).

200 Bear Lodge Multiple Use Ass'n v. Babbitt, 175 F.3d 814, 819 (10th Cir. 1999) (internal citations omitted)

201 While conflict did ensue after the voluntary ban went into place, the ban did have the support of much of the

recreational community. Id.

202 See Natural Arch & Bridge Soc'y v. Alston, 209 F. Supp. 2d 1207, 1211-12 (D. Utah 2002) aff'd sub nom.

Natural Arch And Bridge Soc'y v. Alston, 98 F. App'x. 711 (10th Cir. 2004)

203 See Access Fund, 499 F.3d 1036 (9th Cir. 2007)

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Whereas, in the Devil’s Tower case, the agency aimed not to “impose preferences” on rock

climbers to respect Native American religious practices, rather the agency attempted to “disrupt

taken-for-granted-beliefs and the linked governance structures that reflect and manifest them.”

By influencing the National Park Service at the outset to “insert new understandings” of why

federal agencies should promote the protection of sacred sites, advocates were able to “generate

new governance structures and policies without winning ‘power contests.’”

This paper has explored the legal frameworks purporting to offer protections to sacred

sites on federal lands. The cases litigated under each of the laws, the First Amendment,

RFRA/RLUIPA, NHPA, and NEPA have had mixed results. While efforts to get courts to

recognize and protect the legitimate religious practices of Native Americans at sacred sites on

federal lands should continue, they should not be the sole route of action for sacred site

protection advocates. After surveying the extent of sacred sites protection efforts under existing

legal frameworks, advocates should conclude that strategies relying on the defense of Native

American religious rights in power contests fail to achieve the protections desired. While the

alternative, institutionalized entrepreneurship, through early, pro-active collaboration with the

federal agencies responsible for federal land management decisions has not resulted in absolute

protections of sacred sites, the outcomes have generally been more favorable than engaging in

power contests alone. Therefore, if tribes or individual indigenous people are confronted with the

possible desecration of a sacred site, efforts should be made as early as possible in the process to

consult with the federal agencies responsible for the management of the land in question to

produce favorable outcomes. Such a strategy of institutional entrepreneurship represents the best

pragmatic route for achieving the outcomes desired.

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Institutional entrepreneurship also establishes the necessary preconditions needed to win

and ensuing power contests over sacred sites protections. As Antonio Gramsci has noted, “One

must speak for a struggle for a new culture, that is, for a new moral life that cannot but be

intimately connected to a new intuition of life, until it becomes a new way of feeling and seeing

reality."204 Institutional entrepreneurship offers a necessary first step in creating a new way of

feeling and seeing reality as it relates to the need for sacred sites protections.

204 Antonio Gramsci, Selections From Cultural Writings (1958) 98 (http://www.ldb.org/gramsci.htm)

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ENDNOTES

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