“Jesus, Take the Wheel” and Drive Over an Ancient Burial Ground

In 2008, the U.S. Federal Highway Administration erected plans to widen Highway 26 near Mount Hood in Washington. Upon presenting their intentions to the public, it was revealed that the proposals would effectively raze an ancient Native American burial ground that existed on the government’s property, and remove safe access to the grounds for future worship. This site consisted of a stone alter used for worship, the burial ground, trees and plants used by the tribes for religious practice, and a campground.

While the public might not take issue with the government ridding the surrounding areas of a campground, there was certainly uproar in regards to the burial ground. Members of the Klickitat and Cascade tribes maintain that the land has been passed down from generation to generation, and is held as sacred because it contains the remnants of the tribes’ forefathers and is integral to worshipping their “creator.”

The tribe attempted to bargain with the government, as several of their community leaders engaged in talks to develop a plan that would allow the government to expand the highway and the tribes to keep their hallowed grounds intact for generations. The elder statesmen of the tribe claim that they presented several plans that offered less of a burden to both the state and the tribe, but the government did not relent. The highway was built as planned as the government cited its compelling interest to expand. This video gives a good sense of the tribes’ story, and how intrusive the highway is.

In turn, the tribes sued the USFHA in Slockish v. U.S. Federal Highway Association. The suit has very direct goals, explains Carl Logan, a member of the confederation of effected tribes: “All we want is the return of our sacred artifacts, the rededication of the area for our ancestors, and the promise that we can continue to worship as our tribes have done for centuries.”

The tribe claims in their suit that the government’s refusal to heed the warnings of the tribe and construct the highway has placed a significant burden on their ability to freely exercise their religion, hence violating the First Amendment. Further, they seek protection under the Religious Freedom and Restoration Act, which was aimed at safeguarding Native American communities from this sort of action, forcing the government to abstain from substantially burdening free exercise even with their policies that are facially neutral. For the government to be granted an exception under the law, they must demonstrate a “compelling interest” and proceed in the least burdensome manner possible.

On Friday March 2nd, 2018, a United States District Court in Oregon ruled in favor of the USFHA. The court held that the government was not violating the rights to free exercise of the citizens statutorily, as they deemed the governmental actions to qualify for an RFRA exception. Further, the court cited precedent from the case Navajo Nation et al. v. USFS (US Court of Appeals, 9th Circuit), stating that: “there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no ‘substantial burden’ on the exercise of their religion.” Therefore, the tribes’ claim under the RFRA is invalid.

The defense’s case also hinged on precedent set in Sherbert v. Verner, a case that established a test requiring the government to prove a compelling interest and proceed in the least restrictive means possible in cases where a religious person(s) practice was substantially burdened. Additionally, Wisconsin v. Yoder was invoked to display the notion set forth by SCOTUS that individual’s interest in free exercise outweigh the government's interests, in this case to build a highway. They claimed that, since the government has destroyed their place of worship, they have effectively been “barred” from entering it, placing a direct burden on their free exercise. The defense claims that his action fails the Sherbert Test. Likewise, further appealing to Yoder, they claim that their free exercise interests are greater than the government's interests in building a highway.

The opinion of the court claimed that it is not as though this was the only place of worship for this group: there are “dozens” of other ones in the area. In addition, the court stated, “They face no ‘forced choice’ or ‘Catch–22.’ They are still able to access the site, and there is no evidence that they will be cited for trespass or suffer any government-imposed penalty for doing so. Thus, while plaintiffs may raise important questions whether the decisions regarding the site were culturally sensitive or the least destructive choice among various options, those factors do not establish a substantial burden under the RFRA.”

Effectively, the court has said that since there is a compelling state interest, and their actions have been done in their least restrictive means feasible, the Sherbert Test is passed, the tribe has failed to establish that their rights have been “substantially burdened”, regardless of the moral reprehensibility of the USFHA’s decision.

As I first read this case, I was fervently on the side of the tribe, whose place of worship was taken. As I read through the opinion of the court, I have been swayed partially, and certainly see their logic. However, the realty of the situation is that there is a highway literally running through the worship site (as seen in the video). Further, I am still not convinced that the USFHA acted in the least restrictive means possible when building this highway, as the tribe claims to have presented suitable alternative that were ignored. In that case, the actions would fail the Sherbert Test, and the case should be ruled in favor of the tribe. I acknowledge the slippery slope argument that accompanies this reversal of opinions; that each citizen would essentially hold a veto for government action when their religious beliefs are offended. My response to that is throughout history, the Native American Community has been subject to so many governmental actions of this nature that acts, like the RFRA, had to be enacted to protect their rights. Hence, the groups should and do qualify for higher levels of judicial scrutiny in cases such as this one. I would like to end on a comparison: although a church would be on private grounds whereas this site was on public ground, what would the reaction be if the government razed a church to build a highway? Would the court rule in the same way?