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 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 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 The problem is as follows: because tribes were divested of their traditional homelands by the government,4 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 (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 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 legislative proposals,8 regulatory reforms,9 alternative property rights models,10 or reliance on international human rights law.11 These scholars generally agree that the problem stems in significant part from government misunderstanding of Indigenous people’s unique spiritual traditions.12 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
While the unique nature of Indigenous spiritual practices is an important part of the problem that merits careful study,14 this Article approaches the problem from an entirely different angle.15 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 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 This rationale, finding a lack of government coercion, has been repeated by numerous subsequent courts, government actors, and scholars.18 In Navajo Nation v. United States Forest Service,19 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
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 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 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 But when the baseline of government interference is understood, the opposite should be true.24 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.