(CN) — Government attorneys told Ninth Circuit judges on Tuesday that the court should toss the complaints of tribal elders because the government can’t do anything to rectify the loss of a tribal religious site on Mt. Hood leveled a decade ago in order to widen a highway.
In 2008, the government widened U.S. Highway 26, which runs from the Pacific Ocean over Mt. Hood and into the eastern part of the state. The Oregon Department of Transportation took special care not to disturb wetlands that ran along the road and to avoid encroaching on a roadside tattoo parlor.
But the agency didn’t use that same caution when it came to The Place of Big Big Trees — a sacred site to the members of the Yakama Nation and the Confederated Tribes of Grande Ronde. There, the government bulldozed a centuries-old stone altar, cut down the sacred trees that surround the area and covered the whole thing with a dirt berm.
Carol Logan, a Grande Ronde elder and plaintiff in the case, said after a 2017 hearing that she had worshipped at The Place of Big Big Trees since she was a young girl. She described having wept when the site was destroyed.
“One day we will stand before our creator and we must answer for this,” Logan said. “We pray that the court will understand the spiritual significance and treat us with the same rights and respect as other faiths. We pray that we can continue to go to our sacred grounds. And restore the broken soils, the broken souls and the broken hearts of our people.”
Logan and other tribal members sued, saying they repeatedly pleaded with the government not to disturb the stone memorial and sacred grove of trees. The government could have widened the other side of the road instead, the tribes said, or found another way to complete its project while leaving the religious site intact, as it had done down the road for the wetland and tattoo parlor.
In addition to Logan, Klickitat hereditary chief Wilber Slockish, Johnny Jackson, chief of the Cascade Tribe and the Cascade Geographic Society are plaintiffs in the case. Klickitat and Cascade are bands of the Yakama Nation, which is federally recognized. Both Slockish and Jackson are direct descendants of people who signed the Yakama Nation Treaty of 1855. The Yakama and Grande Ronde tribes are not parties to the lawsuit.
The elders asked the government to return the rocks that made up their altar, replant the medicinal plants they uprooted and large trees they felled and add an interpretive sign describing the significance of the spot. They also want a declaration that the government broke the law.
At a hearing in 2017, U.S. Attorney Reuben Schifman told U.S. Magistrate Judge Youlee Yim You that those remedies were impossible. He said the government doesn’t know where the sacred rocks are and that highway maintenance would prevent the creation of a new sacred site.
In April 2020, Judge You recommended dismissal. You found the U.S. Federal Highway Administration had not violated the Religious Freedom Restoration Act by knocking down and removing a stone altar and historic campsite and felling old growth trees and medicinal plants that they need in order to practice their religion.
You said the elders “have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs.” This past February, U.S. District Judge Marco Hernandez agreed and dismissed the case.
Jackson died in June 2020 after he was hospitalized with Covid-19. Slockish and Logan appealed Hernandez’s ruling, and on Tuesday, a three-judge panel of the Ninth Circuit Court of Appeals heard arguments on whether it would be possible now for the government to provide a meaningful outcome to tribal members who lost a sacred site.
At the hearing, U.S. Circuit Judge Eric D. Miller, a Donald Trump appointee, raised questions about whether the elders should have acted before the project was completed.
“You didn’t seek a preliminary injunction or anything to bar construction, did you?” Miller asked the elders’ attorney Joe Davis with the Becket Fund for Religious Liberty.
“No, your honor,” Davis replied. “But we had filed our lawsuit, we had raised our claims and we were vigorously pursuing claims.”
But Justice Department lawyer Joan Pepin argued the case is moot because the destruction the elders object to happened before they filed their lawsuit. Pepin added the project was necessary because of public outcry over fatal car collisions in the area.
Pepin said reconstructing the sacred site, as the elders have asked the government to do, would be impossible.
“At this point, these features they say made their site sacred are irretrievably gone," Pepin said. "The stones — nobody knows what happened to them and they cannot be brought back.”
U.S. Circuit Judge William A. Fletcher, a Bill Clinton appointee, questioned whether the site was truly a religious one.
“The claims of ‘sacred site’ that are now being advanced are very different from the claims that were previously advanced,” Fletcher said. “There was a claim, for example, with respect to the rock pile. Well, that was very seriously investigated, and I’m not in a position to second-guess one way or the other, but there was a conclusion by experts that this was — rather than an altar, it was just a rock pile.”
Davis said that wasn’t quite right. Archaeological experts had examined the area surrounding the rocks for human remains and found none.
“But as to the use of it, they concluded that it was very old and that it might be indigenous," Davis said, adding the elders had informed the government about the importance of the religious site well in advance of construction.
“Ultimately,” the elders said in their appeal brief, “the government can’t escape a simple fact: It knowingly and needlessly destroyed a Native American sacred site.”
U.S. Circuit Judge Mary M. Schroeder, a Jimmy Carter appointee, rounded out the panel. The judges did not say when they would issue a ruling.
Follow @@karinapdx
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
