Members of two Northwest tribes want the federal government to restore a sacred site near Mount Hood that was destroyed in a highway expansion project 14 years ago.
After the case was dismissed by two lower courts, the tribes on Tuesday took it to the highest court in the country.
Members of the Confederated Tribes and Bands of the Yakama Nation and the Confederated Tribes of the Grande Ronde have asked the U.S. Supreme Court to hear the case of Slockish v. U.S. Department of Transportation. The Bureau of Land Management and the Advisory Council on Historic Preservation are also named as defendants.
Wilbur Slockish is one of four petitioners who brought the case, and is the hereditary chief of the Confederated Tribes and Bands of the Yakama Nation. Other petitioners include Carol Logan, a member of the Confederated Tribes of Grand Ronde and a spiritual practitioner and the nonprofits Cascade Geographic Society and Mount Hood Sacred Lands Preservation Alliance.
The case centers around a 2008 decision by the U.S. Department of Transportation, the Bureau of Land Management and the Oregon Department of Transportation to build a turn lane off Highway 26 about 13 miles from Government Camp. The agencies said this was for safety reasons after a number of traffic accidents occurred nearby, some resulting in death. The federal agencies granted the state transportation agency an easement to build the turn lane, which was on federal land.
But the area is also one of great religious and spiritual significance to tribal members.
Highway 26 follows an ancient Native American trading route, and the new turn lane was built on an acre of old growth trees atop an ancient burial site, campground and stone altar sacred to the tribes.
The burial site is known as Ana Kwna Nchi Nchi Patat, which translates to “Place of Big Big Trees.”
Until the destruction from the highway expansion, Native Americans still visited, prayed and held ceremonies there.
The petitioners said the decision to build the turn lane on a sacred site violates the Religious Freedom Restoration Act, a 1993 law that prohibits any state or federal agency from substantially burdening a person’s exercise of religion and the Free Exercise Clause of the Constitution, mandating Congress make no law prohibiting the free exercise of any religion.
The tribal members want the court to require the federal agencies remove an embankment placed over the ancient burial ground, to replant the trees torn down and to allow the reconstruction of the stone altar.
In a statement, Logan said, “All we want is the return of our sacred artifacts, the rededication of the area for our ancestors and the promise that we can continue to worship as our tribes have done for centuries.”
The tribes sued in 2008 after construction of the lane had finished, but the case moved through the courts for years while negotiations were ongoing and ultimately failed to resolve the case.
It was dismissed by two lower district and circuit courts in 2018 and 2021 because the site is on federal land and the project was overseen by a federal agency.
The Supreme Court will decide sometime between this November and January 2023 whether to hear the case. It is the last chance the tribes have to seek legal restoration of the lost site.
The tribes are represented by Luke Goodrich of Becket, a nonprofit law firm based in Washington D.C. that primarily takes cases of religious freedom.
Goodrich said that he is not concerned the court’s conservative majority will ignore or dismiss the case.
“The Supreme Court has repeatedly affirmed the importance of religious freedom for people of all faiths – including ruling in favor of religious freedom claims in 22 of the last 23 religious freedom cases it has heard over the last decade,” Goodrich said in an email. “We are optimistic that the court will see the need to afford equal protection to Native Americans and their ability to use traditional sacred sites.”
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