Many Native American religious practices are linked to sacred sites—
places in the natural world that have been used for ceremonies and rites since
time immemorial. Often, particular ceremonies and rituals can only be
performed at these locations. Many such sacred sites are located on what is,
today, public land owned by the federal government. The government has at
times desecrated, destroyed, or barred access to sacred sites, rendering Native
religious exercise extremely difficult or impossible.
Congress enacted the Religious Freedom Restoration Act (RFRA) to
provide an alternative source of protection for religious exercise in the wake of
Employment Division v. Smith’s restrictive interpretation of the Free Exercise
Clause. RFRA provides that a government measure that “substantially
burden[s]” a person’s exercise of religion will be subject to strict scrutiny.
Litigants have successfully invoked the statute against the government in a wide
variety of cases. However, Native American litigants seeking protection for
sacred sites located on public lands have been mostly unable to rely on RFRA’s
protection. This is in large part because courts have mistakenly interpreted
RFRA’s “substantial burden” requirement as incorporating Free Exercise
jurisprudence, which has arbitrarily excluded most sacred site claims from
heightened scrutiny simply because the sites were located on public lands. Native
Americans are thus denied the same level of religious free exercise that is
enjoyed by other groups.
This Article illustrates why this overly narrow interpretation of RFRA’s
“substantial burden” requirement is erroneous. The Article then proposes an alternative, textualist, plain-meaning understanding of RFRA’s substantial burden requirement. Such an interpretation corrects these serious errors while requiring courts to appropriately weigh sacred sites claims against countervailing government interests. Thus, it realizes RFRA’s promise of equal and meaningful religious freedom for Americans of all faiths.