Slockish v. U.S Federal Highway Administration

In 2006 the United States Federal Highway Administration announced a project to widen Highway 26 near Mount Hood, Oregon. The project site was within the vicinity of the Wildwood Recreation Area and would severely damage the traditional campsite and sacred burial grounds of the Yakama Nation. After hearing about the project, the Klickitat and Cascade Tribes of Yakama Nation requested that the government stop the development of the site. Despite negotiations and pleads from the Yakama Nation, the Federal Highway Administration began developing in July 2008. The project bulldozed ancestral burial grounds, destroyed a sacred stone altar, as well as other historic, cultural, and natural resources of religious significance. Additionally, safe access was cut off to the site while the government left the other side of the highway unharmed protecting a tattoo parlor and nearby wetlands.

The Tribes of the Yakama Nation have considered this land sacred for centuries and hereditary chiefs of the Tribes, Wilbur Slockish and Johnny Jackson, as well as a member of the Confederated Tribes of Grande Ronde, Carol Logan, filed the case against the federal government. They claim that actions made by the federal government have violated their First Amendment right to exercise their religion. Plaintiffs claim the government act causes a substantial burden and they cite the Religious Freedom Restoration Act (RFRA) of 1993. RFRA reestablishes the Sherbert test as precedent for First Amendment free exercise protections. RFRA was established as a response to the decision in Employment Division, Department of Human Resources of Oregon v. Smith in order to protect religious minorities and held that courts should use strict scrutiny to examine laws that restrict religious exercise. Despite these efforts, the court has held that the plaintiffs “have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs”. As a result, they have continually been denied claims regarding the violation of their free exercise. This case has been stalled for over a decade and as of February 2021, the Tribe members have appealed to the Ninth Circuit. 

I believe that the courts are being neglectful in their analysis of the burden imposed on the Yakama Nation. The RFRA reestablishes the Sherbert test of Sherbert v. Verner, to acknowledge the importance of over a century of case law and being critical of the laws that may impose significant burdens on individuals, specifically minorities. The RFRA remains constitutional under federal law and asks the court to make use of the Sherbert test. They should evaluate if the actions of the Federal highway administration impose a substantial burden on the religious entity, whether the state has an overriding compelling interest, and lastly if there is a least restrictive means by which the government can still serve the public interest. This case passes the first part of the test, as the Tribe no longer has safe access to the remnants of its ancestral grounds in which they have practiced ceremonies long before the nation was founded. Native American Tribes often cannot separate their beliefs from actions and most importantly separate religious belief and practice from the land they reside and protect. The government knowingly violated this sacred site of the Yakama Nation with gross disregard for the community and its religion. Additionally, the state has failed to present a compelling interest, though most importantly, there is a least restrictive means as the Natives of Mount Hood proposed reasonable alternatives to the construction plans. 

This is another display of how the federal government continues to abuse and violate Native communities. The rulings of the case so far are a display of how endangered religious minorities are if they are not adequately taken into consideration. This is seen in decisions such as Crow v. Gullet in which the court similarly ruled in favor of the state expanding a parking lot in favor of the compelling interest of health, welfare, and safety. The courts consistently undermine the significance of land as a fundamental aspect of Native American religious exercise and consequently continue to violate the free exercise clause of the First Amendment. The decisions of the court, in this case, will continue to impact others as there is currently a similar battle occurring in Arizona, Apache Stronghold v. the United States which will similarly reflect the courts’ protection of sacred Native American sites. The decisions in every one of these cases reflect the level of attention and respect that American Law has for Native people. From the decisions of the lower courts, it is evident that the aforementioned rarely exists and the persistence of cases such as Slockish v. U.S Federal Highway Administration are essential in the fight for religious minorities.