Wind farm creates tempest for tribes’ religious liberty

Friday, January 22, 2010

Two American Indian tribes scored a rare and possibly temporary victory this month when the National Park Service agreed to designate Nantucket Sound, where a major wind farm is set to be installed, as eligible for listing in the National Register of Historic Places.

The designation does not prevent development of the wind farm, but it does present new hurdles for the proposed Cape Cod wind-energy project. The fate of the wind farm, known as Cape Wind, now rests with Interior Secretary Ken Salazar, who can decide whether to give the project a green light after seeking advice from an independent federal agency.

The two Massachusetts tribes that requested the designation contend that Nantucket Sound has traditional cultural and archaeological value, and that erecting the proposed 130 turbines in federal waters would block their unobstructed view of the sunrise, preventing them from conducting religious rituals, and would restrict access to now-submerged ancestral burial grounds.

The Aquinnah Wampanoag and Mashpee Wampanoag tribes met Jan. 13 with Salazar to discuss reaching an agreement with the Cape Wind developer. The tribes might be better off trying to broker a compromise now rather than pursuing litigation, considering how poorly Indian nations have fared in attempting to use the courts to safeguard their sacred sites from development. Though the Cape Wind project is not yet headed to court, Native American tribes have consistently lost legal battles to prevent construction on grounds they deem sacred.

In 1977, for example, the Forest Service announced plans to construct a paved road through forest land considered sacred by a group of northern California Indian nations. After efforts to persuade the Forest Service to reconsider its venture failed, the Indian tribes filed suit against the government. The tribes argued that an undisturbed natural setting was indispensable for their religious practices.

The government’s actions, the Indians argued, would seriously interfere with their ability to fulfill their religious obligations freely. “[I]f the First Amendment means anything,” the Indians’ counsel argued in court, “it means that the Government cannot take away the very ability of an individual to practice his religion at the only place that it can be practiced under the tenets of their religion.”

In a decision that many religious-liberty advocates decried, the U.S. Supreme Court ruled in Lyng v. Northwest Indian Cemetery (1988) that the proposed road would not violate the Indians’ free exercise of religion because it would not coerce any Indians into acting contrarily to their religious beliefs, despite acknowledging that the road “could have devastating effects on traditional Indian religious practices.”

The government need not demonstrate a compelling justification for merely making it “more difficult” to practice religion, the majority found.

Justice William Brennan, in dissent, argued that “religious freedom is threatened no less by government action that makes the practice of one’s chosen faith impossible than by governmental programs that pressure one to engage in conduct inconsistent with religious beliefs.”

The fact patterns in both Lyng and the Cape Wind dispute are remarkably similar. At the heart of both cases is a conviction that sacred sites must remain in a certain state in order for the practice of certain religions to be possible.

If the courts are unable to safeguard the interests of the nation’s Native Americans, then Congress could do something — although what it has tried so far hasn’t worked well.

Ten years before Lyng, Congress passed the American Indian Religious Freedom Act to declare it “the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise [their] traditional religions … including but not limited to access to sites.” The 1978 legislation, however, remained toothless for 16 years until enforcement provisions were added in 1994.

Yet such provisions, even when coupled with the passage of the 1993 Religious Freedom Restoration Act, have not done much to protect Native American religious claims.

As recently as 2008, the full 9th U.S. Circuit Court of Appeals ruled in Navajo Nation v. U.S. Forest Service that a ski resort could use treated sewage water to create artificial snow on part of a mountain considered sacred by several Arizona Indian tribes.

“[A] government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what the Congress has labeled a ‘substantial burden,’ ” the 9th Circuit held. Last year, the Supreme Court declined to review the case.

In a statement released by the Interior Department last week, Salazar noted that his two fundamental priorities were to move forward with renewable energy and to preserve historic sites. Though the secretary said he honored the government’s relationship with the Indian nations, he made no mention of their religious-liberty concerns.

Salazar has said he would decide whether to permit the wind farm by the end of April, giving the Aquinnah Wampanoag and Mashpee Wampanoag only a few months to find a solution to their concerns with the current administration.

Robert M. Bernstein is a religious-liberty fellow at the First Amendment Center in Washington, D.C. He graduated from Princeton University, majoring in religion with a focus on religion in America and religion and civil society.

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