APPELLATE COURTS: STOP ACCEPTING AN "ABSURD" FIRST AMENDMENT ANALYSIS FOR NATIVE NATIONS' SACRED SITE DESTRUCTION.

• Author: Sutton, Victoria

I do not use the term "absurd" in this title lightly. Judge Marsha Berzon used it in a dissenting opinion to describe the impractical result that comes from repeating the same First Amendment analysis for sovereign Native Nations that consistently fails to protect their sacred sites. (1) U.S. courts fail to recognize that Native Nations are legally afforded protections under the trust responsibility, (2) a doctrine in federal Indian law. Further, the analogies appellate courts use for Native Nations fail to recognize this unique government-to-government relationship between Native Nations and the federal government, which consequently is never analyzed in this line of cases. Thus, an "absurd" result comes each time a court finds that destroying or desecrating a Native Nation's sacred site is not a burden on their religion because the destruction or desecration does not "coerce" (3) them into not practicing their religion.

Agreed, absurd.

For these reasons, this Article suggests it is judicial time to develop a new test. Ample precedent exists for creating a new test to address a constitutional right; for example, the United States Supreme Court created the Central Hudson test to address the unique nature of commercial speech. Although Central Hudson was created by the U.S. Supreme Court, an appellate court could create a new test in the sacred-sites context and expect favorable review should the U.S. Supreme Court be petitioned and grant a writ of certiorari.

1. FEDERAL COURTS AND FEDERAL INDIAN LAW

   For various reasons, it comes as no surprise that U.S. courts struggle with federal Indian law cases. Federal courts of appeals hear about 50,000 cases each year, with roughly 10% of those cases resulting in a petition for U.S. Supreme Court review. Of those, only about 100 are heard. (4) In 2021, the most recent complete year, there were 125 federal Indian law cases in federal courts, with only 35 reaching federal courts of appeals. (5) And to the extent that appellate judges had a course in federal Indian law during law school or any practice experience with Indian law, it may be very limited. Federal Indian law is not a required course in law school, and many law students leave law school not even knowing Native Nations comprise a third group of sovereigns in the United States. This factor, combined with the proportionately small number of cases that come before the appellate courts, means that it is not surprising that there is a high level of uncertainty and concern about the outcome of each appellate case among federal Indian law scholars.

   Understanding that Native Nations are sovereigns and that the United States has a trust responsibility to them (6) is a foundational principle that should be a starting point in appellate review for every federal Indian law case. But that is not always so. Because of the treaty and government-to-government relationships developed over centuries, based in the Constitution and interpreted by the U.S. Supreme Court, there is a unique legal foundation that serves as a starting point in any legal analysis involving a Native Nation--a foundation that is sometimes ignored. In fact, appellate courts share no common starting point in these cases, except the citation to the U.S. Supreme Court's first foundational cases in federal Indian law that established jurisdiction in the courts for Native Nations and recognizes them as a third form of sovereignty (as "domestic, dependent nations") under the U.S. Constitution. (7)

   In addition, every treaty is different, and each treaty applies to only one or a few tribes among the more than 500 federally recognized tribes in the United States. But all treaties have reserved rights. These reserved rights were affirmed in United States v. Winans, where the U.S. Supreme Court held that the principle of reserved rights is "not a grant of rights to the Indians, but a grant of rights from them, a reservation of those not granted." (8) Some treaties have expressly named rights both on and off reserved lands, which can include hunting, fishing, and gathering rights, but also implied rights such as water, healthcare, education, and natural resources. These implied rights also include the continuity of the Native Nations government, which extends to traditional cultural practices tied to sacred sites.

   Federally recognizing tribes is a colonialized constructed way of politically designating which tribes have been able to negotiate through land disputes, peace agreements, threat of war, or all of the above. This is typically memorialized with a treaty, which was to be ratified by Congress (at least until 1871 when Congress stopped the President's treaty-making authority with Native Nations (9)). So one judicial opinion may be very narrowly written to apply to that particular treaty, but from that opinion, canons of construction have been recognized that should be, but are not always, applied in subsequent cases. Opinions in federal Indian law do not necessarily apply from one case to the next, in part, because of these differences. But canons of construction derived from these cases may apply to future cases.

2. ADVOCACY IN APPELLATE PRACTICE

   Federal Indian law scholars can bring clarity to legal questions that come before the appellate courts through the filing of amicus briefs. Anticipating the legal issues the court will decide to address is part of this persuasive strategy. Some cases turn on legal issues not anticipated by the parties. For example, the court may decide to take a particular analytical pathway to resolve a question because it can avoid larger constitutional issues or because it is an important question. Some have referred to this first path as the constitutional avoidance doctrine, (10) which is not to decide bigger issues than necessary to resolve the case or question.

   The most insidious principles are those where a precedent has set a course of decisions that produce impractical or negative outcomes and it is clear over time that the line of cases produced by these precedents increasingly reveal a flaw or flaws in the analytical logic. The results are "absurd," as Judge Berzon notes in her dissent:

   The majority's flawed test leads to an absurd result: blocking Apaches' access to and eventually destroying a sacred site where they have performed religious ceremonies for centuries does not substantially burden their religious exercise. (11) The absurdity is evident in Apache Stronghold, where the majority finds that the land imploding from an underground mine as a part of the plan does not "coerce" the Apache from practicing ceremonies and gathering traditions on it.

   A number of factors suggest that the protection of sacred sites is an issue that scholars in the field of both constitutional law and federal Indian law can join together and advocate to bring clarity to what has been a tragic failing of the federal legal system for Native Nations.

   The next sections seek to demonstrate this approach to appellate advocacy by laying the foundation for a test that might be used with the First Amendment analysis when applied to the protection of sacred sites. The proposed test is internally consistent with Free Exercise Clause coercion test and distinct from the Establishment Clause cases. By acknowledging federal Indian law and the well-established federal trust responsibility, applying this test will avoid the otherwise absurd result noted by Judge Berzon. The Central Hudson case and test shows this is not unprecedented.

3. FREEDOM OF RELIGION FAULTY JURISPRUDENCE

   The use of the First Amendment (12) to protect sacred sites for Native Nations relies on tests that are doomed to fail from the start, demonstrated by the fact that not a single sacred site has ever been protected based on a freedom of religion argument. Further problematic is that the courts interpret these issues applying cases that are not factually analogous and do not involve property destruction.

   The Establishment Clause prevents the government from protecting "religious" sites because of the fatal test of "entanglement" of the government with religion. The courts use Thomas Jefferson's "wall" ([13]) that separates Church and State as an ever-present tool for breaking treaty promises to allow Tribal nations to continue collective traditions. It is also limited by the Free Exercise Clause where the balancing test proves that no matter what the burden on Tribe's freedom of religion, there has never been a burden too great (or not narrowly...