Towards a Balanced Approach for the Protection of Native American Sacred Sites

Here. (pdf)

From the abstract:

Protection of “sacred sites” is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and there fore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one’s ability to practice a religion. Reacting to the decision, Congress enacted the Religious Freedom Restoration Act (RFRA) which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a “substantial burden” under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites.

 

In this article, I first explore whether the Ninth Circuit’s definition of “substantial burden” is mandated under RFRA. To a large degree this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of “substantial burden,” the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution.