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O'Connor's footprints on Native sacred lands

As politicians stake out ground for the fight over Justice Sandra Day
O'Connor's replacement on the Supreme Court, the right is condemning her
and the left is praising her for being a moderate, by which they mean a
swing vote. In Indian cases too, she often has been the deciding vote,
especially in decisions against the Native interest, but her overall record
reflects an indecisive judicial philosophy regarding federal Indian law.

Her main area of consistency is that land-grabs of the past are not to be
revisited and that actions cannot benefit Native people if they deprive
non-Native people or states of anything.

She has been an important voice for the canon of construction that treaties
and laws are to be interpreted in the way that Indians understand them. At
the same time, she has approached Native religious freedom issues as if
there were no history of violations of Native religious liberties and as if
Native sacred places always belonged to the federal government.

O'Connor trampled on everyone's religious rights in a 1990 decision by
proclaiming Oregon's compelling (read: superior) interest in prohibiting
the ceremonial use of peyote by two state employees. Congress had to step
in and enact broad, clarifying legislation about state burdens on religion,
as well as an amendment to the American Indian Religious Freedom Act for
peyote use by members of the Native American Church.

In an earlier case in 1988, she opined that neither the First Amendment nor
AIRFA provides a door to the courts for protection of Native sacred places,
mainly because the Native view of the sacred is too expansive.

That decision has done deep and lasting damage to sacred places and Native
people who care for them. In the 17 years since that decision, Congress has
talked about, but not enacted, the needed statute providing a cause of
action for protection of these historic and cultural sites.

This case involved a federal logging road that the Forest Service routed
through a Native sacred place in northern California. O'Connor authored the
April 19, 1988 majority opinion for Chief Justice William H. Rehnquist and
justices Byron R. White, John Paul Stevens and Antonin Scalia.

"It is undisputed that the Indian respondents' beliefs are sincere and that
the Government's proposed actions will have severe adverse effects on the
practice of their religion," read the court's opinion. "Those respondents
contend that the burden on their religious practices is heavy enough to
violate the Free Exercise Clause unless the Government can demonstrate a
compelling need to complete the [logging] road or to engage in timber
harvesting in the Chimney Rock area. We disagree."

The five-judge majority overturned decisions by district court and
appellate judges, who ruled for the traditional Indian people, and made it
clear that the Supreme Court knew that harm would result from the opinion.
"The Government does not dispute, and we have no reason to doubt, that the
logging and road-building projects at issue in this case could have
devastating effects on traditional Indian religious practices ... we can
assume that the threat to the efficacy of at least some religious practices
is extremely grave."

O'Connor's there-goes-the-neighborhood concern is best appreciated in her
own words: "No disrespect for these practices is implied when one notes
that such beliefs could easily require de facto beneficial ownership of
some rather spacious tracts of public property ...

"The Constitution does not permit the Government to discriminate against
religions that treat particular physical sites as sacred, and a law
prohibiting the Indian respondents from visiting the Chimney Rock area
would raise a different set of constitutional questions. Whatever rights
the Indians may have to the use of the area, however, those rights do not
divest the Government of its right to use what is, after all, its land."

Nowhere in the decision is there a hint of admission that most of the
public lands were stolen or coerced from Indian nations and that federal
rules prohibited Indian people from going to sacred places on those lands
for more than 50 years.

"Nothing in our opinion should be read to encourage governmental
insensitivity to the religious needs of any citizen ... The Government's
rights to the use of its own land, for example, need not and should not
discourage it from accommodating religious practices like those engaged in
by the Indian respondents."

A dissenting opinion was filed by justices William J. Brennan, Thurgood
Marshall and Harry A. Blackmun. Brennan wrote for the three-judge minority:
"The land-use decision challenged here will restrain respondents from
practicing their religion as surely and as completely as any of the
governmental actions we have struck down in the past, and the Court's
efforts simply to define away respondents' injury as non-constitutional are
both unjustified and ultimately unpersuasive."

Reading the dissent again reminds me of the clear thinking and good writing
that passed with these three justices. They wrote that the "Court's concern
that the claims of Native Americans will place 'religious servitudes' upon
vast tracts of federal property cannot justify its refusal to recognize the
constitutional injury respondents will suffer here ... That case, however,
is most assuredly not before us today, and in any event cannot justify the
Court's refusal to acknowledge that the injuries respondents will suffer as
a result of the Government's proposed activities are sufficient to state a
constitutional cause of action.

"Today, the Court holds that a federal land-use decision that promises to
destroy an entire religion does not burden the practice of that faith in a
manner recognized by the Free Exercise Clause. Having thus stripped
respondents and all other Native Americans of any constitutional protection
against perhaps the most serious threat to their age-old religious
practices, and indeed to their entire way of life, the Court assures us
that nothing in its decision 'should be read to encourage governmental
insensitivity to the religious needs of any citizen.'"

Brennan concluded their dissent in this way: "I find it difficult, however,
to imagine conduct more insensitive to religious needs than the
Government's determination to build a marginally useful road in the face of
uncontradicted evidence that the road will render the practice of
respondents' religion impossible. Nor do I believe that respondents will
derive any solace from the knowledge that although the practice of their
religion will become 'more difficult' as a result of the Government's
actions, they remain free to maintain their religious beliefs.

"Given today's ruling, that freedom amounts to nothing more than the right
to believe that their religion will be destroyed. The safeguarding of such
a hollow freedom not only makes a mockery of the 'policy of the United
States to protect and preserve for American Indians their inherent right of
freedom to believe, express, and exercise the[ir] traditional religions'
(quoting AIRFA), it fails utterly to accord with the dictates of the First
Amendment. I dissent."

Members of Congress can honor the record of O'Connor by doing as she
suggested and crafting a statutory cause of action for Native sacred
places. But the reasons for doing it will be found in the words and
reasoning of the departed dissenters.

Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the
Morning Star Institute in Washington, D.C. and a columnist for Indian
Country Today.