Winter King: Protecting sacred sites after Supreme Court case

The Supreme Court’s decision in Burwell v. Hobby Lobby, which held that the Affordable Care Act’s “contraceptive mandate” violated the Religious Freedom Restoration Act when applied to certain closely-held corporations, generated strong reactions from every corner of the political realm. The religious right and anti-abortion camps claimed it as a definitive victory for religious freedom and a blow to governmental interference with core religious beliefs. Advocates for women’s rights and the ACA decried it as a blatant attack on women’s health and family planning.

While the right cheered and the left wept, advocates for native religious rights were left scratching their heads. After all, Indian tribes and their members have attempted to use RFRA since it was enacted to protect sacred lands from desecration, maintain access to religious sites, and otherwise protect their religious freedoms, only to be told over and over again that the challenged government activity did not impose a substantial burden on their free exercise of religion.

Take the recent San Francisco Peaks case. There, the Ninth Circuit Court of Appeals held that placing treated sewage effluent on the slopes of a mountain in northern Arizona imposed no substantial burden on the religious free exercise of the Navajo, Havasupai, Hualapai, Hopi, White Mountain Apache, Yavapai-Apache, and other area tribes who hold the mountain sacred. The court reasoned that the “recycled wastewater,” which was made into artificial snow for a ski resort, would be applied only to a small portion of the mountain, and the tribes could still access other parts of the mountain to perform religious ceremonies. Even though the use of treated sewage effluent would “spiritually desecrate” a sacred mountain, the court held that such desecration did not amount to a “substantial burden” on the tribes free exercise of religion.