Joel West Williams and Emily deLisle have posted “An ‘Unfulfilled, Hollow Promise’: Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice,” forthcoming in the Ecology Law Quarterly, on SSRN. Here is the abstract:

Many Native American religious practices are linked to sacred sites – places in the natural world that have been used for ceremonies and rites since time immemorial. Often, particular ceremonies and rituals can only be performed at these locations. Many such sacred sites are located on what is, today, public land owned by federal government. The government has at times desecrated, destroyed, or barred access to sacred sites, rendering Native religious exercise extremely difficult or impossible.

The Religious Freedom Restoration Act (RFRA) was enacted to provide an alternative source of protection for religious exercise in the wake of Employment Division v. Smith’s restrictive interpretation of the Free Exercise Clause. RFRA provides that a government measure that “substantially burden[s]” a person’s exercise of religion will be subject to strict scrutiny. The statute has been successfully invoked by litigants against the government in a wide variety of cases. However, Native American litigants seeking protection for sacred sites located on public lands have been mostly unable to rely on RFRA’s protection. This is in large part because courts have mistakenly interpreted RFRA’s “substantial burden” requirement as incorporating Free Exercise jurisprudence, which has arbitrarily excluded most sacred sites claims from heightened scrutiny simply because the sites were located on public lands. Native Americans are thus denied the same level of religious free exercise that is enjoyed by other groups.

This article illustrates why this overly narrow interpretation of RFRA’s “substantial burden” requirement is erroneous. It demonstrates that courts, especially the Ninth Circuit, have construed “substantial burden” in a manner that is inconsistent with fundamental principles of statutory interpretation, with RFRA’s purpose, and with the Supreme Court’s own reasoning in recent cases including Burwell v. Hobby Lobby and Holt v. Hobbs. We highlight how courts applying this prevailing interpretation reach the absurd conclusion that government actions that erase sacred sites and destroy practitioners’ ability to worship do not constitute a “substantial burden” upon religious exercise.

The article then proposes an alternative textualist, plain-meaning understanding of RFRA’s substantial burden requirement which corrects these serious errors while requiring courts to appropriately weigh sacred sites claims against countervailing government interests – realizing RFRA’s promise of equal and meaningful religious freedom for Americans of all faiths.