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American Indian Law

Rethinking Protections For Indigenous Sacred Sites

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Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access Indigenous peoples face.

Scholars concerned about government failure to protect Indigenous sacred sites on government property have generally agreed that the problem stems from the unique nature of Indigenous spiritual traditions as being too distinct from non-Indigenous religious traditions familiar to courts and legislators, and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to Indigenous religious exercise and other non-Indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes in longstanding philosophical debates about the nature of coercion itself — a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-Indigenous religious exercise. The failure to ask this same question about voluntarism for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-Indigenous religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when government interference with religious voluntarism is viewed clearly, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more — rather than less — robust protection of Indigenous sacred sites.

Introduction

Government officials in this nation have been desecrating and destroying Native American sacred sites since before the Republic was formed.1×1. Throughout this Article, we use “Native American,” “American Indian,” and “Indigenous people” interchangeably.  Our intent is to broadly encompass within these imprecise terms the many varied peoples whose traditional homelands fall within the borders of the United States, whether federally recognized American Indian tribes (as that term is used in federal law), state-recognized tribes, tribes still seeking legal recognition, Alaska Natives, or Native Hawaiians.  Each of these Indigenous peoples has a distinct history and legal relationship with the United States; many share a common history of dispossession of sacred sites At the hands of both public and private actors, graves have been despoiled, altars decimated, and sacred artifacts crassly catalogued for collection, display, or sale. Native American people have also faced hurdles, if not outright prohibitions, on accessing sites essential to their rites of worship.

Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. The threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers Indigenous people face in accessing and preserving these sites and resources. For example, during construction of the U.S. border wall in 2020, Apache burial sites were “blown up.”2×2. Native Burial Sites Blown Up for US Border Wall, BBC News (Feb. 10, 2020), https://‌www.‌bbc.‌com/‌news/world-us-canada-51449739 [https://perma.cc/DC56-Z4DQ]; Erik Ortiz, Ancient
Native American Burial Site Blasted for Trump Border Wall Construction
, NBC News (Feb. 12, 2020, 6:13 PM), https://‌www.nbcnews.com/news/us-news/ancient-native-american-burial-site-blasted-trump-border-wall-construction-n1135906 [https://perma.cc/K5CY-NWDU].  The La Posta Band of Diegueno Mission Indians has filed a lawsuit in federal court seeking to temporarily halt the installation of the wall until the tribe can protect its religious and cultural heritage.  Julie
Watson, Tribe Says New Border Wall Harming Burial Sites; Sues Trump, AP News (Aug. 12, 2020), https://‌apnews.com/‌277668808d1209533cb2ae0ae5878599 [https://‌perma.cc/SM4X-VKS9]. And in 2018, a federal court ruled that the government was allowed to bulldoze a Native American burial ground and desecrate an ancient stone altar where religious ceremonies had taken place, merely to expand a road.[footnote-short-crop]See Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1 (D. Or. June 11, 2018); see also Plaintiffs’ Objections to Magistrate’s Findings and Recommendations at 17–18, Slockish, No. 08-cv-01169 (D. Or. Apr. 22, 2020).
As one scholar notes, “among all the Native American cultural and religious issues, protection of sacred sites is the one area where Native Americans have enjoyed by far the least success.”3×3. Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 270 (2012) [hereinafter Skibine, Towards a Balanced Approach] (citing Jessica M. Wiles, Note, Have American Indians Been Written Out of the Religious Freedom Restoration Act?, 71 Mont. L. Rev. 471, 497–98 (2010)); see John Rhodes, An American Tradition: The Religious Persecution of Native Americans, 52 Mont. L. Rev. 13, 23 (1991); Alex Tallchief Skibine, Culture Talk or Culture War in Federal Indian Law?, 45 Tulsa L. Rev. 89, 100–07 (2009); Rayanne J. Griffin, Comment, Sacred Site Protection Against a Backdrop of Religious Intolerance, 31 Tulsa L.J. 395, 395 (1995). The problem is as follows: because tribes were divested of their traditional homelands by the government,4×4. See infra section I.B, pp. 1307–17. Indigenous peoples are often placed in the difficult position of being beholden to the government to continue to engage in centuries-old practices and ceremonies.

These threats are particularly notable given strong protections for other non-Indigenous places of worship, including on government property. Multiple factors fuel this anomalous burden on Native people’s free exercise of their religion. Traditional religious liberty protections such as the Free Exercise Clause or Religious Freedom Restoration Act of 19935×5. 42 U.S.C. §§ 2000bb to 2000bb-4. (RFRA) have been interpreted in ways that, so far, render them virtually toothless when it comes to protecting sacred sites. Some argue the Establishment Clause actually creates additional barriers to protecting these sacred spaces.6×6. See, e.g., Anastasia P. Winslow, Sacred Standards: Honoring the Establishment Clause in Protecting Native American Sacred Sites, 38 Ariz. L. Rev. 1291, 1293–94 (1996). And despite its assertion of sweeping plenary power over Indian affairs, the federal government has done little of consequence to protect the ability of tribes to access and preserve sacred sites.

Scholars concerned about government failure to protect Indigenous sacred sites have offered varied solutions, including modified judicial approaches,7×7. Skibine, Towards a Balanced Approach, supra note 4, at 275 (calling for a modified judicial approach that would offer only intermediate scrutiny in Indian sacred sites cases, rather than strict scrutiny). legislative proposals,8×8. Id. (“Concluding that Lyng may prevent the adoption of a broader definition of ‘substantial burden,’ this Article recommends amending the American Indian Religious Freedom Act (AIRFA).”). regulatory reforms,9×9. See, e.g., Christy McCann, Dammed if You Do, Damned if You Don’t: FERC’s Tribal Consultation Requirement and the Hydropower Re-licensing at Post Falls Dam, 41 Gonz. L. Rev. 411, 454–55 (2005); James A.R. Nafziger, Protection and Repatriation of Indigenous Cultural Heritage in the United States, 14 Willamette J. Int’l L. & Disp. Resol. 175, 178 (2006); Marren Sanders, Ecosystem Co-management Agreements: A Study of Nation Building or a Lesson on Erosion of Tribal Sovereignty?, 15 Buff. Env’t L.J. 97, 101–02 (2007–2008); Michelle Kay Albert, Note, Obligations and Opportunities to Protect Native American Sacred Sites Located on Public Lands, 40 Colum. Hum. Rts. L. Rev. 479, 509–10 (2009); Marcia Yablon, Note, Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land, 113 Yale L.J. 1623, 1626 (2004). alternative property rights models,10×10. Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061, 1062–67 (2005) [hereinafter Carpenter, A Property Rights Approach] (arguing that courts have failed to recognize Indian property rights at sacred sites and evaluating a real property law approach to sacred sites cases); Kristen A. Carpenter, Real Property and Peoplehood, 27 Stan. Env’t L.J. 313, 324–40 (2008) (arguing that First Amendment cases have failed to recognize the constitutive relationship between tribal nations and sacred sites and proposing that federal administrative policy should recognize the nonfungible nature of sacred sites in tribal identity and culture); Kristen A. Carpenter, Sonina K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L.J. 1022, 1112–24 (2009) (criticizing judicial decisions on sacred sites under the First Amendment and RFRA and arguing for a cultural property approach grounded in Indigenous stewardship and cooperative governance). or reliance on international human rights law.11×11. See, e.g., Rebecca Tsosie, Conceptualizing Tribal Rights: Can Self-Determination Be Actualized Within the U.S. Constitutional Structure?, 15 Lewis & Clark L. Rev. 923, 925 (2011). These scholars generally agree that the problem stems in significant part from government misunderstanding of Indigenous people’s unique spiritual traditions.12×12. See, e.g., Kristen A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious Freedoms, 45 Conn. L. Rev. 387, 387 (2012) (“[T]he Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection . . . .”); Allison M. Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 Stan. L. Rev. 773, 773 (1997) (“Professor Dussias chronicles a continuing failure by legal institutions to understand and respect Native American religious beliefs and practices . . . .”); Peter J. Gardner, The First Amendment’s Unfulfilled Promise in Protecting Native American Sacred Sites: Is the National Historic Preservation Act a Better Alternative?, 47 S.D. L. Rev. 68, 68–69, 73–74 (2002) (emphasizing the unique importance of sacred spaces to Indigenous religious practice and the failure of courts to recognize this under the First Amendment); Jason Gubi, The Religious Freedom Restoration Act and Protection of Native American Religious Practices, Mod. Am., Fall 2008, at 73, 77 (observing the problem that unique Indigenous practices are misunderstood by government); Martin C. Loesch, The First Americans and the “Free” Exercise of Religion, 18 Am. Indian L. Rev. 313, 315 (1993) (“Because most of the judicial decisions reflect serious misunderstandings about Indian spiritual beliefs, this section summarizes some of the prominent features of Indian spirituality. . . . The Court must recognize that Native American spiritual practice claims are different from the nonreligious practice claims other groups legitimately make upon the state.”); Skibine, Towards a Balanced Approach, supra note 4, at 273 (“While the degree of understanding among judges and justices may vary, one cannot deny a certain Western-centered aspect in the Lyng Court’s discussion of the burden on Native American practitioners. Such views, which are also reflected in both the district court and the Ninth Circuit en banc decisions in Navajo Nation v. United States Forest Service, suggest a lack of understanding about why sacred sites are important to Indian people. . . . [T]his view portrays Native religious activities at sacred sites as only about spiritual peace of mind. While such benefits are certainly part of the practice, they do not go to the heart of why these sacred places are important to Indian people or why management practices like cutting down trees and spilling recycled sewage water on sacred land are extremely disturbing to many Indian tribes.”). Courts have also noted the distinctive qualities of Indigenous religious practices regarding sacred sites, but courts have too often used this distinction as an excuse to deny traditional protections for religious exercise.13×13. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451–53 (1988); Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1210–11, 1214 (9th Cir. 2008); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1063 (9th Cir. 2008); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 239 F. Supp. 3d 77, 89–91 (D.D.C. 2017); La Cuna De Aztlan Sacred Sites Prot. Circle Advisory Comm. v. U.S. Dep’t of the Interior, No. 11-cv-00395, 2012 WL 2884992, at *8 (C.D. Cal. July 13, 2012); S. Fork Band v. U.S. Dep’t of Interior, 643 F. Supp. 2d 1192, 1207–08 (D. Nev. 2009).

While the unique nature of Indigenous spiritual practices is an important part of the problem that merits careful study,14×14. See Dussias, supra note 13, at 806 (“Native American plaintiffs attempting to vindicate their free exercise rights in federal court must first confront a fundamental problem. The First Amendment refers to the free exercise of religion, as if religion were wholly separable from other aspects of individuals’ lives. Although this isolation of religion from other aspects of life may accurately reflect the Anglo-American perspective of the First Amendment’s drafters, it is foreign to the Native American world view. While the Anglo-American world view tends to see law, religion, art, and economics as separate aspects of society, the Native American world view tends to see them as interdependent parts of an organic, unified whole. Indeed, no Native American language has a word that can be translated as ‘religion.’ Thus, attempting to isolate religion from other aspects of life is ‘an exercise which forces Indian concepts into non-Indian categories.’” (footnotes omitted) (quoting Lyng, 485 U.S. at 459 (Brennan, J., dissenting))). this Article approaches the problem from an entirely different angle.15×15. For a related and important argument about ways in which the rights of Indigenous peoples are not unique, see Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1793–95 (2019). It argues that insufficient protection of sacred sites does not stem primarily from the government’s inability to recognize the unique features of Indigenous practices. Rather, we assert that governments, courts, and scholars have failed to adequately acknowledge similarities between government interference with voluntary Indigenous religious exercise and interference with other non-Indigenous religious practices. Honing in on the government’s effect on religious practice highlights troubling double standards that must be confronted if Indigenous use of sacred sites is to receive protection of the kind afforded to other religious groups. But to do so, we must begin by reconceptualizing our understanding of government coercion, at least as a doctrinal matter.

The primary justification for denying government protection of and access to sacred sites is the argument that no government coercion is involved in such denials. As the Supreme Court stated in Lyng v. Northwest Indian Cemetery Protective Association,16×16. 485 U.S. 439. by denying access to a sacred site, the tribal members would not be “coerced by the Government’s action” through threat of penalties or denial of benefits “enjoyed by other citizens.”17×17. Id. at 449. The Court accepted the arguments of the government’s counsel that in building the road, “the Government” did not “put an objective burden on an individual’s choice about what course of conduct he or she was going to pursue.” Transcript of Oral Argument at 17–18, Lyng, 485 U.S. 439 (No. 86-1013). This rationale, finding a lack of government coercion, has been repeated by numerous subsequent courts, government actors, and scholars.18×18. See, e.g., Snoqualmie Indian Tribe, 545 F.3d at 1214–15; Standing Rock Sioux Tribe, 239 F. Supp. 3d at 91; La Cuna De Aztlan, 2012 WL 2884992, at *8; S. Fork Band, 643 F. Supp. 2d at 1208; Raymond Cross & Elizabeth Brenneman, Devils Tower at the Crossroads: The National Park Service and the Preservation of Native American Cultural Resources in the 21st Century, 18 Pub. Land & Res. L. Rev. 5, 33 (1997) (“The proposed closure of Devils Tower violates neither the coercion nor the endorsement test.”); Chad Flanders, Substantial Confusion About “Substantial Burdens,” 2016 U. Ill. L. Rev. Online 27, 28 (“In Lyng, the government planned on putting a road through a forest that was sacred to a Native American tribe. The tribe sued but lost because, while destroying the forest was certainly a bad thing for the tribe and a hindrance to them being able [to] practice their religion, it did not put pressure on them to violate their beliefs or change their religion. The action of the government was not of the form, ‘do this, or else pay a price.’ It is this element of coercion or pressure, essentially a threat by the government against you to make you act against your beliefs, which defines something as being a ‘burden’ under RFRA.” (footnotes omitted)); Anna Su, Varieties of Burden in Religious Accommodation, 34 J.L. & Religion 42, 44 (2019) (“Accordingly, courts and many scholars readily come to the conclusion that there is no burden involved if there is no issue of direct choice or any form of coercion.”); James E. Ryan, Note, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1416 (1992) (“[E]ven prior to Smith, the free exercise claimant faced something of a Catch-22. In order to demonstrate a burden, the government involvement or interference with the adherent’s religious practices had to be significant enough that it could potentially ‘coerce’ the adherent to abandon her faith. Yet such extensive involvement or interference would almost always signify that the government had a compelling interest in the law or practice in question, particularly considering what constituted ‘compelling’ in the Court’s eyes.”); Karly C. Winter, Note, Saving Bear Butte and Other Sacred Sites, 13 Great Plains Nat. Res. J. 71, 83 (2010) (“RFRA . . . faces many of the same problems as the First Amendment does in sacred site protection cases. Namely, that the destruction of a sacred site does not amount to coercion and so fails to provide a cause of action.”). See generally Amy Bowers & Kristen Carpenter, Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association, in Indian Law Stories 489 (Carole Goldberg, Kevin K. Washburn & Philip P. Frickey eds., 2011). In Navajo Nation v. United States Forest Service,19×19. 535 F.3d 1058 (9th Cir. 2008). for example, the Ninth Circuit sitting en banc said “a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.”20×20. Id. at 1069–70 (emphasis added) (citations omitted). For a thoughtful discussion of the development of the substantial burden standard in free exercise jurisprudence, see Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 937–42 (1989).

One phenomenon that has gone unnoticed by scholars is that the debate about sacred sites unwittingly engages longstanding philosophical debates about the nature of coercion itself. Our Article argues that regardless of whether we formally label the government’s actions as “coercive” or as something else, the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development.21×21. For a discussion of religious voluntarism, see Donald A. Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development: Part II. The Nonestablishment Principle, 81 Harv. L. Rev. 513, 517–18 (1968). Professor Donald Giannella explains: “Religious voluntarism thus conforms to that abiding part of the American credo which assumes that both religion and society will be strengthened if spiritual and ideological claims seek recognition on the basis of their intrinsic merit.” Id. at 517. This value includes avoiding “plac[ing religion] at a handicap.” Id. at 518. Indeed, we illustrate how this is precisely the sort of question courts ask when evaluating government burdens on other forms of non-Indigenous religious exercise. And the failure to ask this same question for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion in contexts impacting other religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites. This egregious double standard in the law ought to be revisited.

Further, the Lyng conception of coercion treats tribal members as being on the same footing as other individuals exercising their religion in a predominantly private space, where government inhibitions on voluntary religious practice are the exception rather than the norm. But tribal members seeking access to federally owned sacred sites are not exercising their religion under a baseline of voluntary choice. Instead, because of the history of government divestiture and appropriation of Native lands, American Indians are at the mercy of government permission to access sacred sites. As such, they are subjected to a baseline of omnipresent government interference with the use of many of their most sacred sites. This baseline of coercion, so lightly dismissed as a legal insignificance in Lyng, is simply overlooked for Indigenous peoples.

Scenarios involving a baseline of coercion, or ongoing government interference with voluntary religious practice, are rarer than those involving the voluntary choice baseline but are not wholly unique to Indigenous sacred sites. In fact, we find a baseline of coercion in prison, the military, and even zoning requirements. Where government controls access to worship areas and resources, and it exerts decisive control over individuals’ ability to use spaces of worship consistent with theological requirements, there is de facto coercion involved. In each of these contexts, government is obliged by law (both constitutional and statutory) to provide affirmative religious accommodations to ensure individuals in these spaces can practice their religion. Analyzing these scenarios highlights the acute injustice of the government’s unwillingness to accommodate tribes in the coercive context where government controls access to their worship areas and resources.

Shifting the focus from the uniqueness of religious practice to the reconceptualized government coercion at play in these conflicts has a number of important implications. First, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. RFRA requires a showing of a “substantial[] burden” on religious exercise.22×22. 42 U.S.C. § 2000bb-1(a). Currently, courts have made it essentially impossible for tribal plaintiffs to demonstrate a substantial burden in the context of sacred sites owned by the government.23×23. Steven C. Seeger, Note, Restoring Rights to Rites: The Religious Motivation Test and the Religious Freedom Restoration Act, 95 Mich. L. Rev. 1472, 1473 (1997) (“Despite this effort to restore religious freedom, [RFRA] has not fully achieved its remedial goals due to narrow judicial interpretations of the substantial burden requirement.”). But when the baseline of government interference is understood, the opposite should be true.24×24. Professor Frederick Gedicks has observed that religious activity and religious exercise are distinct liberty interests and should not be subsumed by analogies to speech interests. Frederick Mark Gedicks, Towards a Defensible Free Exercise Doctrine, 68 Geo. Wash. L. Rev. 925, 932–34 (2000). Here, we are arguing that Indigenous exercise regarding sacred sites should be protected, and courts have focused too much on the uniqueness of Indigenous spiritual beliefs. The ongoing interference with voluntary religious exercise means that Indigenous religious exercise is being burdened more, not less, than religious exercise in the context of a baseline where voluntary choice is the default. Second, a clearer understanding of the coercive control government exercises over sacred sites, and the way in which this harms tribes, should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to protect the sacred practices of tribal members. In order to give meaningful protection, the government must work to affirmatively protect and allow access to sacred sites over which the government has claimed coercive control. Some government officials have refused to accommodate tribal members’ access to sacred sites based on the argument that “preferential treatment” of tribes risks violating the Establishment Clause’s requirement of neutrality. But once one considers the unique disadvantage of tribal members compared to most other religious groups operating under a baseline of voluntary choice, it is clear that — rather than violating the Establishment Clause — affirmative religious accommodations are necessary to approximate any semblance of neutrality.

Part I of this Article describes the importance of sacred sites to Indigenous peoples, as well as the devastating history of government-sanctioned divestitures and spoliation of sacred sites. This history provides important context for why Indigenous sacred sites are more vulnerable to government interference with religious exercise. Part II of the Article recontextualizes the way in which the law ought to view coercion, highlighting situations where government interference is the baseline and affirmative accommodation is required to remove the interference. Part III of the Article provides a roadmap for how a correct conception of coercion will lead to a correct substantial burden analysis that should at least provide religious protections for Indigenous peoples on par with the practices of other non-Indigenous religious groups. This Part further explains how natural limits on strict scrutiny analysis, and the sacred sites practices of Indigenous peoples themselves, should quell fears about the slippery slope argument that Indigenous peoples will be given a de facto veto power or religious servitude over the government’s use of all federal lands. Part III also makes the novel claim that the federal government’s plenary power and trust responsibilities actually empower and require it to provide more — rather than less — robust protection of Indigenous sacred sites.


* Stephanie Hall Barclay is an Associate Professor of Law at Notre Dame Law School, where she leads the law school’s Religious Liberty Initiative. Professor Barclay participated in litigation in some of the cases mentioned in this article. The views expressed in this Article do not represent the views of any party in any cited case or the Becket Fund for Religious Liberty.
** Michalyn Steele is a Professor of Law at Brigham Young University’s J. Reuben Clark Law School and a member of the Seneca Nation of Indians of New York. The authors thank Stephanie Bair, Netta Barak-Corren, Jud Campbell, Kristen Carpenter, Nathan Chapman, Steven Collis, Barry Cushman, Brigham Daniels, Joseph Davis, Seth Davis, Mark DeGirolami, Elysa Dishman, Clifford Fleming, Rick Garnett, Frederick Gedicks, Luke Goodrich, Jessie Hill, Michael Helfand, Paul Horwitz, Bruce Huber, Michael McConnell, Mary Ellen O’Connell, Nathan Oman, James Phillips, Clifford Rosky, Zalman Rothschild, Amy Sepinwall, Elizabeth Sepper, Geoffrey Sigalet, Alex Tallchief Skibine, Paul Stancil, Mark Storslee, Anna Su, Avishalom Tor, Elizabeth Kronk Warner, and Lael Weinberger. The authors also thank participants at the Stanford Law School Constitutional Law Center Workshop, the Nootbar Institute for Law, Religion & Ethics at Pepperdine University Workshop, the University of Utah Law School Workshop, and internal faculty workshops at BYU Law School and Notre Dame Law School. For excellent research assistance, the authors are indebted to America Andrade and McKinney Voss, and for superb library support to Faculty Services Librarian Annalee Hickman of the Howard W. Hunter Law Library at BYU. Special thanks to Lisa Grow Sun for comments and discussions about this and many other drafts, and for encouraging and mentoring both authors into legal academia.

This article is dedicated to the grandmothers who kept the fires of faith burning against the winds of oppression and through the winters of assimilation. This article is also dedicated to Chief Wilbur Slockish and Carol Logan, and to the memory of Michael Jones and Chief Johnny Jackson. Their courageous examples continue to inspire others to help defend Indigenous sacred sites.