Religious Freedom/Sacred Places

Traditional religious and ceremonial practices of Native Americans are inseparably bound to land and natural formations. The relationship between physical areas and religious ceremonies is a basic and essential component of these religions and cultures.Many ceremonies and rituals are performed at specific sites.

A large number of those places sacred to traditional Native religions and significant to Native cultures are located on land owned by non-Natives. Western concepts of resource development, such as logging, mining and tourism, may conflict with the integrity of these sacred places.Yet, while federal and other land managers routinely take into account the needs of developers and recreational users in making land management decisions, they do not so readily take into account the often profound effect of their undertakings upon sacred, ceremonial and traditional cultural places that are critical to Native American populations, tribes and cultures. For this reason, the protection of sacred, ceremonial and traditional cultural places has been deemed to be both an environmental justice and human rights issue.

AAIA has long designated sacred lands protection as a priority program and has worked diligently on a national basis and with numerous tribes around the United States in their respective battles to protect traditional ceremonial places. In the 1990s we coordinated and took part in a five-year effort to obtain American Indian religious freedom legislation. Although the omnibus legislative proposal did not pass, Congress took action to strengthen National Historic Preservation Act protections for sacred sites and President Clinton signed an Executive Order pertaining to sacred sites. Legislation legalizing the ceremonial use of peyote by Native Americans also passed Congress during this time period as a result of our efforts.

In addition to our national work, AAIA has also provided assistance in a number of specific sacred sites disputes, beginning in the 1960s with the effort to return the sacred Blue Lake to the Taos Pueblo.

For example, in the case of the Bighorn Medicine Wheel, AAIA helped create the Medicine Wheel Coalition, a coalition of Plains Tribes who have a traditional history of using the Medicine Wheel and Medicine Mountain for spiritual purposes. With the assistance of AAIA, the Coalition negotiated and signed in 1996 a landmark Historic Preservation Plan (HPP) with the Forest Service, as well as state and local government agencies, designed to ensure that the entire area around Medicine Wheel and Medicine Mountain is managed in a manner that protects the integrity of the site as a sacred site.

In 1999, Wyoming Sawmills, a local logging company, filed a lawsuit seeking to overturn the HPP, claiming it violated the First Amendment of the Constitution and several federal laws. In this effort, Wyoming Sawmills was represented by the Mountain States Legal Foundation a right-wing legal organization consistently opposed to government efforts to voluntarily protect Native American sacred places. AAIA provided legal counsel to the Medicine Wheel Coalition, which intervened in this case. The Coalition and Forest Service ultimately prevailed, with a Tenth Circuit Court of Appeals ruling in 2004 dismissing the lawsuit and a petition to the Supreme Court for review which was ultimately denied.

Since that time, AAIA has worked with the Coalition and other consulting parties to ensure that the HPP is fully implemented, including incorporation of the HPP into the new Forest plan. Efforts are currently taking place to have the entire mountain designated as a National Historic Landmark for its traditional cultural significance.

In other circumstances, AAIA has represented tribes and traditional Native practitioners in cases opposing actions by the Forest Service. One such case involves the San Francisco Peaks in Arizona. The Peaks are sacred to 13 southwest Indian tribes and hundreds of thousands of Native Americans and plays a central role in the religious practices of many of those tribes. The Snowbowl ski area located on the Peaks proposed using treated sewage for snowmaking, a proposal approved by the Forest Service. AAIA, working with DNA Legal Services, represents the Hualapai tribe and Hopi and Navajo traditional practitioners in a lawsuit opposing the proposal.

In March 2007, the Ninth Circuit Court of Appeals in the case of Navajo Nation v. United States Forest Service ruled that the proposed use of treated sewage effluent for snowmaking at the San Francisco Peaks would violate the Religious Freedom Restoration Act (RFRA). It also found that the Environment Impact Statement prepared by the Forest Service was inadequate to comply with the requirements of the National Environmental Policy Act. For these reasons, it issued an injunction prohibiting the snowmaking project from going forward.

The Government and ski area petitioned for an en banc review of the panel’s decision, however. Their request was granted and an 11 judge panel of the Ninth Circuit was convened. By a vote of 8-3, the panel ruled against the tribal plaintiffs finding that because the project would not coerce the plaintiffs to act contrary to their religious beliefs or condition a government benefit upon conduct that would violate their religious beliefs, there was no substantial burden upon their religious practices. The Court held that the plaintiffs’ “diminishment of spiritual fulfillment” did not give rise to a claim under the Religious Freedom Restoration Act (RFRA).

The Supreme Court has been asked to review the case, although whether they will agree to hear the case is unknown at present.

We have worked closely with many other tribes across the country - from California to New Mexico to South Dakota - to help them fight development that will have an adverse impact upon their sacred places. These places have included Devils Tower [Bear Lodge] (Wyoming), Bear Butte (South Dakota), Medicine Lake (California), Rainbow Bridge (Utah), Cave Rock (California), Indian Pass (California), Petroglyph National Monument (New Mexico), Black Creek (New Jersey), Mount Graham (Arizona), Arctic National Wildlife Refuge [ANWR] (Alaska) and Indian Pass (California). This assistance has taken a variety of forms from the filing of amicus briefs in the cases of Devils Tower, Rainbow Bridge and Black Creek to providing legal analysis in support to tribal attorneys in the Bear Butte matter. It also involved support of efforts to defeat a bond issue in the case of Petroglyph National Monument and to defeat legislation opening up ANWR to oil drilling.

Many of these efforts resulted in positive outcomes or decisions. Government plans to fund a shooting range at Bear Butte were shelved. The legal challenge to the government's protective management plan for Rainbow Bridge was dismissed by the Ninth Circuit Court of Appeals. The Forest Service issued a decision supporting tribal efforts to limit rock climbing at Cave Rock. The California Legislature passed a law requiring backfill of cyanide gold mines, thereby making the cost of the proposed gold mine development at Indian Pass prohibitive.

AAIA's sacred lands work has also included a public education and training component.Through a grant from the Ford Foundation, AAIA has developed comprehensive legal training materials on the protection of sacred lands and Traditional Cultural Properties and holds workshops to educate tribal people and other interested stakeholders about the legal framework available for the protection of sacred lands and TCPs. Workshops have been held for such diverse groups as the DC Bar Association, Redding Rancheria and other tribes in California, the United South and Eastern Tribes and the United States Forest Service.

Religious Freedom/Sacred Places

Black Mesa Trust

Sage Council

Defenders of the Black Hills

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