Protect The 1st Challenges Weak Standard that Allows Destruction of Religious Sacred Sites
Protect The 1st recently filed an amicus brief in the Ninth Circuit supporting the Yakama Nation and the Grand Ronde Tribes following the destruction of their sacred lands. Its brief summarizes principles of religious freedom important to all communities of faith.
In the brief, Protect The 1st argued that a highway enlargement project that destroyed the tribes’ sacred lands substantially burdened their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause.
For centuries, these Native Americans have revered a scenic site in central Oregon. Ignoring their concerns, the government cut down trees, scattered and removed an ancient altar, unearthed gravesites and killed off medicinal plants. A federal district judge held that the destruction of sacred land did not substantially burden these tribes’ religious exercise under RFRA because it neither deprived the tribal members of government benefits nor subjected them to civil or criminal penalties.
If the Ninth Circuit’s narrow standard for what qualifies as a substantial burden is affirmed, no sacred place will be safe. The rights of these Native Americans are shared by all.
“It’s too late to protect the sacred land of the Yakama Nation and the Grand Ronde Tribes,” said Bob Goodlatte, former House Judiciary Chairman and now Senior Policy Advisor for Protect The 1st. “We can at least persuade the Ninth Circuit to review its narrow standard of what constitutes a burden on the free exercise of religion. This doctrine is being used by lower courts to hold that the annihilation of places of worship are somehow not ‘substantial’ burdens.”
Protect The 1st was joined in its brief by the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the Anglican Church in North America Jurisdiction of the Armed Forces and the Chaplaincy.
“If the Ninth Circuit’s narrow standard for what qualifies as a substantial burden is allowed to stand, no sacred place will be safe,” Goodlatte said. “The rights of these Native Americans are shared by all.”
Protect The 1st is supporting the Apache tribes in a similar challenge to an 11th-hour deal in Congress slipped into the 2015 defense authorization bill to trade their sacred land to a foreign mining company. If that company is allowed to mine copper, the sacred lands of the Apache will be reduced to a two-mile wide sinkhole a thousand feet deep.
“What we’ve seen in Oregon is the tragic result of ambiguity around a single modifier – the word ‘substantial’ – and the inability of courts to see that the destruction of a religion’s sacred site is about as ‘substantial’ as a burden can be,” Goodlatte said. “We hope this case prompts the court to impose a more robust standard that no court can ignore.
“Above all, we are working to see that what happened to the Yakama Nation and the Grand Ronde Tribes does not happen to the Apache tribes of Arizona.”
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