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.