Major Sacred Sites Win for Tribes: 
RFRA Trumps Lyng
by Carl Christensen Visiting Assistant Professor

Navajo Nation v. U.S. Forest Service, 479 F.3d 1024 (9th Cir. 2007), involves a dispute over a proposal to expand the private Snowbowl ski resort, located on U.S. Forest Service lands on the San Francisco Peaks of Arizona, and to use recycled sewage effluent to make artificial snow to increase the length of the skiing season. The Peaks are sacred to a number of Southwestern tribes; therefore, the Navajo Nation, White Mountain Apache Nation, Havasupai Tribe, Hopi Tribes, as well as other plaintiffs, challenged the Forest Service’s approval of the plan on various grounds, among them the claim that the use of recycled effluent would violate the Religious Freedom Restoration Act (RFRA) because it would destroy the mountain’s purity and contaminate the natural resources needed to perform certain religious ceremonies, thus making it impossible for the tribes to continue their religious practices. 

In Lyng v. Northwest Indian Cemetery Association (U.S. 1988), the U.S. Supreme Court determined that the U.S. Forest Service did not impose a “substantial burden” on an Indian tribe’s religious practices, and thus did not violate the tribe’s First Amendment rights to freely exercise their religion, when it authorized the construction of a logging road through an area of public land sacred to the tribe, even though the road construction would so change the nature of the sacred site as to create a “threat to the efficacy of at least some religious practices” that was “extremely grave.” In Navajo Nation, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit distinguished Lyng and held that the Religious Freedom Restoration Act of 1993 (RFRA), as amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), does in fact protect tribes’ interest in the integrity of their sacred sites because RFRA, as amended, provides protections that are considerably broader than those protected by the First Amendment itself. 

Two years after deciding Lyng, the Supreme Court again cut back on the scope of the Free Exercise Clause of the First Amendment, holding in Employment Division, Department of Health Resources of Oregon v. Smith (U.S. 1990), that the First Amendment provided no protection for religion against even “substantial” burdens if they are imposed by laws of general applicability that have no discriminatory intent. Smith provoked a congressional backlash, however, and in 1993 Congress enacted RFRA, which provides that the federal government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “the application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . the least restrictive means of furthering that compelling interest.” As originally enacted, RFRA defined the protected “exercise of religion” to be the “exercise of religion under the First Amendment to the Constitution.” 

RFRA, as enacted, thus overturned Smith but did not change the effect of Lyng. Accordingly, it appeared that even the most sacred sites of Indian tribes lacked any substantive protection from destruction if they were located on public lands and the government chose to allow development activities to go forward notwithstanding tribal objections. 

RFRA was originally intended to impose restrictions on state and local governments as well as the federal government, but in City of Boerne v. Flores (U.S. 1997) the Supreme Court held that the Fourteenth Amendment did not grant the power to impose such restrictions on state and local governments. In response, Congress enacted RLUIPA with the intent of again imposing certain restrictions on state and local governments to the extent the Commerce Clause granted it the power to do so.  With the enactment of RLUIPA, however, Congress replaced RFRA’s narrow definition of the “exercise of religion” with a broader definition, applicable to both statutes, providing that the protection extended to “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” including “the use, building, or conversion of real property for the purpose of religious exercise.” 

In considering the tribes’ claims under RFRA, the Ninth Circuit held that, in light of the newly expanded definition of “religious exercise” contained in RLUIPA, the proposed use of sewage effluent did constitute a “substantial burden” on the tribes’ protected religious practices. Furthermore, the court held that neither the expansion of recreational activities at the ski resort nor certain other claimed advantages were a “compelling government interest” that would justify the imposition of the burden and, in any event, there had been no “showing that approving the proposed action advances that interest by the least restrictive means.” The court also distinguished Lyng on its facts, stating that here the tribes were not requesting “the wholesale exclusion of non-Indians from the land in question.” 

In summarizing the religious freedom issue, the court stated eloquently:

The record in this case establishes the religious importance of the Peaks to the Appellant tribes who live around it. From time immemorial, they have relied on the Peaks, and the purity of the Peaks’ water, as an integral part of their religious beliefs. The Forest Service and the Snowbowl now propose to put treated sewage effluent on the Peaks. To get some sense of equivalence, it may be useful to imagine the effect on Christian beliefs and practices—and the imposition that Christians would experience—if the government were to require that baptisms be carried out with “reclaimed water.”

The Forest Service has filed a petition for rehearing and rehearing en banc, arguing that Lyng still controls and that the plaintiffs have not shown that the expansion of the resort and its use of recycled sewage effluent impose a “substantial burden” on the exercise of plaintiffs’ religions.