A redeemable loss: Lyng, lower courts and American Indian free exercise on public lands.

• Author: Zwick, Peter

Rising above Arizona's desert plains, the San Francisco Peaks reach higher than any other mountain range in the state. (1) Named in honor of the medieval Italian Francis of Assisi (2)--a man venerated by the Catholic Church as the patron saint of animals and the environment (3)--the string of ancient volcanic summits contains impressive biological diversity and breathtaking natural beauty. (4) For the benefit of generations of Americans, the Peaks are federally protected as part of the Coconino National Forest. (5) Thus, the United States Forest Service ("Forest Service") oversees the area, which provides ample opportunity for recreational activities, such as hiking, skiing, and mountaineering. (6)

In addition to their aesthetic and recreational value to nature lovers, the Peaks are of central importance to the traditional religious practices of various American Indian groups. Whether they believe the mountains to be the exact spot of creation, (7) the "mother of humanity," (8) a theologically necessary sacramental site, (9) or even the home of things divine, (10) the Hopi, the Navajo, the Hualapai, the Havasupai, and other tribes have directed religious observances toward the Peaks from time immemorial. (11)

No small prize, a cynic would find it unsurprising that the San Francisco Peaks have been the subject of extensive litigation. Unfortunately, good will between the Indians and the Forest Service is often not enough to overcome tensions between both parties' admittedly strong interests in the mountain range. When, in 2005, the Forest Service authorized the use of reclaimed sewage to augment snow manufacturing capacity and expand skiing operations in the Snow Bowl section of the Peaks, Native American groups responded with litigation in opposition to the plan. (12) After an unsuccessful effort at the district court level, the Indian plaintiffs secured a reversal in the United States Court of Appeals for the Ninth Circuit, (13) which granted relief on the basis of the Indians' claim under the Religious Freedom Restoration Act of 1993 ("RFRA"). (14) Unfortunately for the Indian plaintiffs, their success was short lived. Barely a year later, the Ninth Circuit reheard the case en banc, and affirmed the district court's denial of relief. (15)

The scenario played out in Navajo Nation v. U.S. Forest Service is rather common. Practitioners of traditional Indian religions, despite having strong and identifiable religious interests in public lands, are staggeringly unsuccessful at vindicating their interests in American courts. Commonly, Indians who oppose federal land use decisions on religious grounds seek refuge in the First Amendment's Free Exercise Clause and its legislative offshoot: RFRA. Nonetheless, because federal courts consistently hold that neither source offers anything more than token protection for Indians confronted with federal actions carrying catastrophic religious consequences, some suggest courts have "effectively read American Indians out of RFRA" and placed them beyond certain First Amendment protections. (16) In light of our nation's history with respect to groups of indigenous American ethnicity, that our courts are reluctant to extend expansive free exercise guaranties to Indian religions is, perhaps, to be expected. However, it would seem prudent to tread lightly when taking actions that may effectively exclude entire religions from constitutional safeguards.

This Note explores possible reasons for the consistent failure of Native American free exercise challenges to federal land use policy. Part I provides a synopsis of Supreme Court free exercise jurisprudence, focusing on landmark cases and statutes that established the analytic framework for neutral laws of general applicability which incidentally burden religion. Part I also examines how Indian free exercise challenges to federal land use have fared at various stages of the development of free exercise jurisprudence. Furthermore, Part I discusses the current state of Indian free exercise rights in federal courts, and the extent to which lower courts faithfully apply Supreme Court precedent. Part II describes and criticizes two common explanations of Indian plaintiffs' lack of success: (1) courts assume a secular-religious distinction in free exercise cases and that this distinction is incompatible with Indian religion, and (2) courts fail to appreciate the grave importance of specific sites to Indian religions because site-specificity is not an essential concept in conventional Western religious thought. Part III argues that the most pressing impediment to Indian free exercise challenges is not culture clash, but a widespread, unduly expansive reading of Lyng v. Northwest Indian Cemetery Protective Association. (17) Part III suggests that the holding in Lyng was actually quite narrow, and that subsequent cases that rely on Lyng to deny relief involve factually dissimilar scenarios, which do not implicate the Lyng analysis.

1. INDIAN SACRED SITES AND FEDERAL LAND

   Practitioners of traditional American Indian religions find themselves in an especially unique relationship with the U.S. Federal Government. Most Americans who subscribe to religious faiths embrace traditions with roots in the Middle East and Europe: imports to this continent. (18) The bulk of the remainder finds the closest geographic links to its religious heritage in and around modern day India, and throughout East Asia. (19) Thus, religiously significant lands, for the vast majority of Americans, lie far beyond the purview of U.S. federal authority. Indigenous to this continent, however, American Indians trace their religious traditions to sites scattered throughout the American landscape. As our nation moved westward, the Federal Government gained ownership over many of the lands inhabited or venerated by American Indians. (20) Though under federal control, scores of these lands remain religiously important to various American Indian peoples who continue to revere them as sacred sites. (21) Nevertheless, federal ownership of sacred sites gives rise to an obvious tension between Indian religious preferences and federal land ownership interests. (22) Despite the good will that may exist between the parties, (23) the Federal Government, as owner, has significant latitude to use and dispose of Indian sacred sites. (24) Consequently, American Indians often rely on constitutional limits on federal discretion when they choose to oppose federal land use that they believe negatively impacts their religious practices. Commonly, the First Amendment and corresponding religious freedom legislation frame the arena for such challenges, and, as such, the two provide this Note's analytical starting point.

   Before continuing, it should be said that any general discussion of "Indian religion" in this Note does not imply that there is a single religion indigenous to the North American continent, nor is it intended to minimize the religious diversity among those who trace their ancestry to pre-Columbian America. It has been suggested, however, that several theological themes are common among Indian religious traditions. In fact, identifying such themes and exploring their implications has been the focus of extensive scholarship. (25) Nonetheless, whether these characterizations are fair or accurate has little bearing on the thesis of this Note. In order to debunk explanations for the lack of Indian success in free exercise land use cases, this Note may, from time to time, concede such characterizations if they form an essential premise of a proffered explanation, but the author seeks to avoid generalization whenever possible.

   1. Free Exercise of Religion: The Established Framework

      As commentators aptly suggest, the Supreme Court's record on free exercise questions regarding neutral laws of general applicability fails to exemplify perfect uniformity. (26) The law and interpretations surrounding the Free Exercise Clause have undergone notable fluctuation. While the Court, over the first half of the last century, generally deferred to religious claimants when government actions restricted religious practice, the Court neglected to devise specific parameters within which to assess free exercise claims until the early 1960s. (27) Once established, the parameters observed by Supreme Court Justices and the pertinent legislative landscape underwent identifiable evolutions throughout the latter half of the twentieth century. (28) These evolutions continue to reverberate today, and they influence modern jurisprudential approaches to free exercise challenges of federal land use policy. A brief abstract of representative Supreme Court cases and legislative response informs this Note's discussion.

      In 1963, the Supreme Court took the first step toward crystallizing an approach to free exercise and neutral laws that impact religious practices in Sherbert v. Verner. (29) In Sherbert, the Court assessed the constitutional implications of denying government benefits on the basis of incompatibility between a citizen' s religious practices and the requirements of the benefit program. (30) Granting the plaintiff relief, (31) the Court held that "any incidental burden on the free exercise of ... religion [must] be justified by a 'compelling state interest....'" (32) In turn, even in light of such a compelling interest, "it would plainly be incumbent upon [the state] to demonstrate that no alternative forms of regulation" would accomplish the same objective "without infringing First Amendment rights." (33) In other words, the Court employed a strict scrutiny analysis. Although the decision most obviously pertained to the relatively unique plaintiff whose religion stood as an obstacle to participation in a government program, the decision contains little language that suggests the court meant to limit the application of strict scrutiny, or any other part of its reasoning, to such scenarios. (34) In...