Sacred Site Remediation

In October, the US government settled a lawsuit challenging its callous destruction of a centuries-old Native American sacred site. The historic settlement in Slockish v. US Department of Transportation comes after 15 years of litigation that culminated in the Ninth Circuit dismissing the whole case as “moot” because the government had already bulldozed the site and supposedly could do nothing to bring it back.

Under the settlement, the government will take several actions to restore, recognize, and provide access to the site. The government agreed to the settlement while the parties were waiting to hear whether the Supreme Court would take up the case.

This settlement is striking not only because it is a major vindication for the Yakama and Grand Ronde people, but also because of what it says about the Ninth Circuit’s misguided ruling. In most cases, when the parties settle a lawsuit after a lower court’s ruling, the compromise means the parties might never know whether a lower court was right to rule the way it did. Each side is hedging its bets as to whether the court’s ruling would be overturned. This is the rare case where the settlement itself proves the court got it wrong.

First, some brief background: The lawsuit was brought after the federal government razed a small strip of Oregon forest known as Ana Kwna Nchi Nchi Patat (meaning “Place of Big Big Trees”) to widen a highway. Despite knowing the plot of land was sacred ground for members of the Confederated Tribes and Bands of the Yakama Nation and the Confederated Tribes of Grand Ronde, and despite having any number of options available to avoid destroying the site (such as simply widening the other side of the highway), the government proceeded with its plans and leveled the site.

A group of tribe members and leaders sued, claiming the government violated a bevy of laws, including the federal Religious Freedom Restoration Act. That law, also known as RFRA, prevents the federal government from burdening anyone’s right to religious exercise without compelling justification. Put another way, the government can’t get in the way of someone’s religious exercise unless it has a really good reason—a high bar for the government to meet. The tribe members argued that the government’s decision to tear down the sacred site needlessly eliminated their ability to worship, in violation of RFRA.

The wrinkle was that by the time the lawsuit was filed, the government had already destroyed the site. And the plaintiffs weren’t asking for compensation—only that the site be restored in some way.

Although the case had been drawn out for well over a decade, the Ninth Circuit dismissed the case as moot. The tribe members argued that while the damage was done, the government could certainly do something to remediate the harm. Yet the Ninth Circuit disagreed, reasoning that because the federal government had authorized Oregon to use and control the land in question, there was nothing the federal government—or the court—could do.

While this settlement is a resounding victory, it is important to remember that religious freedom cases need not always take an all-or-nothing approach.

The Ninth Circuit’s decision was wrong for several reasons. First, the court assumed too quickly that because the ideal solution—preventing the sacred site from being destroyed—was no longer possible, there was nothing more that could be done. But RFRA was designed to protect the rights of religious minorities, and the court’s unwillingness to seriously consider alternative ways of allowing the tribes to worship frustrated that purpose. Minority religious groups often practice in unique ways. Religious freedom protections should be flexible enough to accommodate religious practice even when the remedy isn’t a perfect solution.

Second, courts have long taken a more flexible approach in the analogous context of environmental remediation. When the government harms or destroys a wildlife habitat or a nesting or foraging area, for example, the Ninth Circuit has gone to great lengths to uphold environmental lawsuits in the face of mootness challenges. In such cases, the court tends to search high and low for possible remedies, up to and including tearing down a highway or ordering the creation of an artificial habitat, because even cumbersome or costly solutions can keep a case alive. A federal court’s powers to remediate harm should be just as broad when it comes to Indigenous sacred sites.

Third, and perhaps most importantly, the Ninth Circuit’s mootness ruling has now been debunked by the settlement itself. Throughout the lawsuit, the tribe members offered up several solutions that would have allowed them to resume religious worship. The government, they explained, could replant native trees. It could rebuild the destroyed stone altar. It could grant the tribes access to the site. Or it could place a marker to commemorate the historic site. The Ninth Circuit rejected all these options, ruling that not a single one was possible. Yet the settlement now refutes the Ninth Circuit’s ruling across the board. Under the settlement’s terms, the tribe members will now receive essentially everything they had requested. So the court wasn’t just wrong. It was wrong multiple times over.

In other words, the settlement means that the federal government had the ability to meet the plaintiffs’ spiritual needs all along. In essence, after bluffing for years, claiming it could do nothing, the government has now tipped its hand, recognizing that there were in fact a whole array of corrective measures within its power. The next time the government claims that accommodation is impossible, courts should give the claim closer scrutiny.

While this settlement is a resounding victory, it is important to remember that religious freedom cases need not always take an all-or-nothing approach. The tribal members in Slockish requested a variety of solutions, and their religious freedom rights could have been advanced by any combination of those proposed solutions. That is part of what made the mootness holding so problematic. In future cases, courts should be more open to creative solutions, particularly when it comes to accommodating minority religious practices that might not be well understood by judges.

The case also highlights why courts should be wary of the government’s attempts to evade federal religious freedom protections by hiding behind third parties. Because RFRA is enforceable only against the federal government, the government has in some cases attempted to avoid its responsibilities in sacred-site cases by transferring ownership or control of the site to a third party and then claiming there is no longer anything the government can do to protect the sacred site. If left to stand, such evasive transfers would allow the government to easily circumvent key religious freedom protections.

Such attempts are already before the court again. In another Ninth Circuit case the court recently heard en banc, Apache Stronghold v. United States, the Apache people are fighting to prevent another sacred site from destruction. One of the government’s arguments in Apache Stronghold is that it transferred the land to a private third party, so, yet again, the court’s hands are tied. After the Slockish settlement, one can only hope the Ninth Circuit won’t make the same mistake twice.