This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Association, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.
Next, this Note delves into three pre-existing theories from like-minded critics of Lyng, analyzing the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test which modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.
State of Hawai’i, Office of Hawaiian Affairs: “Mauna Kea is a deeply sacred place that is revered in Hawaiian traditions. It’s regarded as a shrine for worship, as a home to the gods, and as the piko of Hawaiʻi Island.
Mauna Kea is also a critical part of the ceded lands trust that the State of Hawaiʻi must protect and preserve for future generations, pursuant to its kuleana as a trustee.
Despite four state audits and generations of Native Hawaiians expressing concern about the threats to Mauna Kea, the state and the University of Hawaiʻi have continuously neglected their legal duties to adequately manage the mountain. Instead, they have prioritized astronomical development at the expense of properly caring for Mauna Kea’s natural and cultural resources.”
Materials in the matter of Coyote Valley Band of Pomo Indians of California, et al v. United States Department of Transportation et al, 15-cv-04987 (N.D. Cal. 2016):
Defendants in this case must not be allowed to destroy historic properties, cultural resources, and sacred sites to build the Willits Bypass Project. This case challenges Defendants’ ongoing failure to properly identify and protect Plaintiffs’ ancestral, sacred, cultural, and archaeological sites and resources in the construction of the Willits Bypass Project. As a result of Defendants’ ground-disturbing activity both along the route and in the mitigation lands of the Willits Bypass Project, Defendants have destroyed the ancestral Native American sacred and cultural sites of Plaintiffs the Coyote Valley Band of Pomo Indians and the Round Valley Indian Tribes of California and failed to protect such places in the area of the Project, including the mitigation lands.
Turtle Talk 
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