Without waiting for a U.S. Supreme Court decision, federal authorities agreed in October to repair a site they destroyed to add a turn lane to a highway.
by Massimo Introvigne
The problem of Native American places of worship is that they do not resemble a church, a temple, or a synagogue. Theirs are religions of nature, and their “places of worship” may include an altar but mostly consist of trees, portions of rivers, and other natural spaces held to be sacred. For this reason, courts of law may have problems in protecting them by applying the laws that prevent the destruction of places of worship.
“Bitter Winter” continues to follow the saga of the Oak Flat Apache site in Arizona, destined to disappear as a consequence of a land swap opening the way to one of the largest copper mines in the world. The Apaches have lost several rounds in court, but they are supported by a broad coalition of religionists and the case is not over.
Another sacred site, however, finally received protection. Ana Kwna Nchi Nchi Patat, in English “the Place of Big Big Trees,” located near Mount Hood in Oregon, has been for time immemorial a sacred site of the Clackamas and Kalapuya tribes. It included ancestral burial grounds, a century-old stone altar, and ancient trees.
Unfortunately, Ana Kwna Nchi Nchi Patat is located along the route of U.S. Highway 26, which has a crucial importance for Oregon tourism. In 2008, the U.S. Federal Highway Administration bulldozed the site destroying the trees, the burial grounds, and the altar to add a turn lane to Highway 26. Eventually, the federal agency had to admit that it would have been possible to build the turn lane without disturbing the Native American sacred land. It would just have been more expensive.
Negotiations for a settlement failed, and tribal elders sued the government. They lost in first degree at the U.S. District Court for the District of Oregon in 2018 and on appeal at the U.S. Court of Appeals for the Ninth Circuit in 2021, confirming the reluctance of American federal courts to protect sacred sites that do not conform to the traditional image of a “place of worship.”
With the help of the specialized religious liberty law firm Becket, the Native Americans went to the U.S. Supreme Court. Concerned that the pro-religious-liberty attitude of the present Supreme Court might lead to a defeat for the government, the federal authorities settled in October and agreed to repair the site by planting trees and restoring the stone altar. In this month of November, work has started and is expected to be completed within 2024.
Hopefully, the favorable conclusion of the Ana Kwna Nchi Nchi Patat controversy in Oregon would influence the Oak Flat case, although in Arizona enormous economic interests are at stake, not comparable to a mere highway turn lane.