THE LAW
The U.S. Religious Freedom Restoration Act (RFRA)Footnote 2 provides that:
(a) Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability [except that] …
(b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person—
(1) … is in furtherance of a compelling governmental interest; and
(2) … is the least restrictive means of furthering that compelling governmental interest.
THE CASES
Both cases discussed burdens imposed on Native American religious practice by U.S. government actions, and both involved government impacts on indigenous spiritual or cultural places. In Navajo Nation, et al. v. United States Forest Service et al. Footnote 3 the action at issue was issuance of permission by the U.S. Forest Service to a private ski facility operator to use treated sewage effluent to make snow on a portion of the San Francisco Peaks. The Arizona mountain in question is significant in the religious beliefs and practices of the Navajo Nation and other American Indian tribes and pueblos in the U.S. southwest. In Comanche Nation v. United States of America,Footnote 4 the issue was U.S. Army construction of a training facility on Fort Sill in the state of Oklahoma, which would affect the view from and toward Medicine Bluff, a rocky highland important in traditional Comanche tribal religion. Navajo Nation was decided in the Ninth Circuit Court of Appeals. The decision in Comanche Nation was made by the District Court for the Western District of Oklahoma (in the Tenth Circuit) on issuance of a preliminary injunction halting the Army's project.
THE DECISIONS
In Navajo Nation, the district court whose decision was appealed to the Ninth Circuit, had acknowledged that, to traditional Navajo, the San Francisco Peaks are the “Mother of the Navajo people”Footnote 5 and compose one of “the holiest of Navajo shrines.”Footnote 6 The court also recognized that the Hopi, Havasupai, Yavapai, Hualapai, and White Mountain Apache Tribes regard the peaks as spiritually significant.Footnote 7 The tribes and others sought to block effluent-derived snowmaking on the peaks, charging that it would burden their practices of religion in violation of RFRA. The district court had rejected the plaintiffs' claims and dismissed the case. On appeal, a Ninth Circuit panel reversed the district court decision and found for the plaintiffs, but the Ninth Circuit then reconsidered the case en banc and found that the snowmaking would not burden the tribes' religious practices. As a result on 8 August 2008, the court dismissed the case.
Comanche Nation has thus far produced a very different result. On 23 September 2008, the District Court for the Western District of Oklahoma issued a preliminary injunction halting the U.S. Army's construction of a training support center at Fort Sill. The construction site of the proposed support center is about 1600 feet south of Medicine Bluff (also known as Medicine Bluffs), a stone-faced hill well known as an important place in the practice of traditional Comanche religion.Footnote 8 The Comanche Nation opposed the construction, holding that it would burden the exercise of religion by tribal members by interfering with views of and from the bluff that are important to Comanche religious experience.Footnote 9 The court found that by obstructing the views, as well as by introducing vehicle traffic into the area, the Army's project would substantially burden the practice of Comanche religion. Based on its conclusion that the plaintiffs could likely prevail if the case went to trial, the court issued the preliminary injunction halting construction until the matter could be adjudicated. It is unclear at present whether the government will take the matter to trial or give up on the project.
Questions were also raised in both cases about the government's compliance with section 106 of the National Historic Preservation Act (NHPA), which requires agencies to consider the effects of their actions on historic properties. In the Navajo case, the Forest Service had concluded a Memorandum of Agreement under section 106 with several tribes, the Arizona State Historic Preservation Officer, and the Advisory Council on Historic Preservation. The court found that the government had thus complied with section 106. In the Comanche case, the Army had found that its project would not affect any historic properties based on an archaeological survey of the project site, effectively disregarding visual and other nonphysical effects on Medicine Bluff. The court in this case concluded that the Army's compliance with NHPA, like its compliance with RFRA, was deficient.
THE DIFFERENCE
The difference between the Navajo and Comanche cases in terms of compliance with NHPA is unambiguous. In the case of Navajo, the Forest Service had consulted with the tribes, the State Historic Preservation Officer, the Advisory Council on Historic Preservation, and other interested parties. It concluded an agreement in accordance with the governing regulations.Footnote 10 Although the plaintiff tribes did not sign the agreement, their signatures were not required by the regulations. In the Comanche case, by contrast, the Army had not effectively consulted with the tribe, and it had made a determination that no historic properties would be affected in the face of clear contrary evidence.
The difference between the cases in terms of RFRA turns on interpretation of the term “substantially burden.” The Navajo court found that permitting snowmaking on the San Francisco Peaks using treated wastewater would not substantially burden the exercise of tribal religion. The Comanche court found that blocking views of Medicine Bluff would substantially burden such exercise.
The Navajo court's majority derived its definition of burdensomeness from two Supreme Court decisions, both dealing with the “free exercise” clause of the First Amendment to the U.S. Constitution and neither involving either tribes nor spiritual places. In one of these cases, Sherbert v. Verner,Footnote 11 the court found substantial burden to a Seventh Day Adventist's practice of religion when she was removed from her government job for refusing to work on Saturday, her Sabbath.Footnote 12 In the other case, Wisconsin v. Yoder,Footnote 13 the court found that the state of Wisconsin burdened the practice of Amish religion when it required Amish children to attend school until age 16.Footnote 14 In both cases the plaintiffs were forced to act in ways contrary to their religious beliefs so as either to retain a benefit—a job in Sherbert's case—or to avoid sanction—criminal prosecution in the case of Yoder. The Navajo court's majority, applying Yoder and Sherbert, concluded that
under RFRA, a “substantial burden” is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a government benefit [Sherbert] or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions [Yoder].Footnote 15
Although it was urged by the government defendants to apply the Ninth Circuit's rule, the district court in Comanche Nation did not do so, calling it “restrictive.” The Comanche court based its conclusions on a broader rule crafted by the Tenth Circuit: that a government action substantially burdens the exercise of religion if it “significantly inhibit(s) or constrain(s) conduct or expression or den(ies) reasonable opportunities to engage in religious activities.”Footnote 16
CONCLUSION
The use of religious freedom laws in the United States to protect traditional indigenous religious practice and places remains a dicey proposition. The Navajo decision, among others, demonstrates that courts are not above deciding that tribal spiritual beliefs are not in fact what tribes say they are. The Comanche case as thus far addressed by the court provides hope for a more reasonable, less ethnocentric rule of law, but the final resolution of that case remains to be seen.
