Suit over sacred tribal site on Mount Hood will be heard in Ninth Circuit on Tuesday

Tribal leaders say the Federal Highway Administration’s widening of U.S. 26 in 2008 bulldozed an altar and burial grounds

Originally published by Oregon Capital Chronicle. For more coverage related to Oregon state government, politics and policy, visit the Oregon Capital Chronicle website.

Two tribal leaders who’ve pursued a year’s long battle with the federal government over a patch of Mount Hood they consider sacred will get another chance to make their case in court.

The leaders want the federal government to restore what they say is an ancestral religious location.

They sued the Federal Highway Administration in U.S. District Court in Portland in 2008. Earlier this year, the court dismissed the case, so they appealed. It returns to the Ninth Circuit Court of Appeals in San Francisco on Tuesday.

Wilbur Slockish, hereditary chief of the Klickitat Tribe of the Yakama Indian Nation, and Carol Logan, an elder with the Confederated Tribes of Grande Ronde, are the lead plaintiffs. The area they’re fighting over sits next to U.S. 26 about 13 miles west of Government Camp.

“The site has been used by indigenous peoples since time immemorial and by plaintiffs personally since the 1940s for core religious ceremonies that cannot take place anywhere else,” a court brief said.

Now a grassy berm alongside the busy highway, the area was once home to old-growth trees and a stone altar, the suit said. But in 2008, highway officials destroyed it by widening the highway and adding a center turn lane, the suit said.

The elders claim the addition of the left-turn lane at the site was akin to ransacking their place of worship.

“To me it’s like them going into the Catholic Church or the Protestant Church and cutting their altar or moving it in a different place and saying it’s of no significance,” Slockish said in a video. “It’s our job as Native people as long as we stand, we have to protect that because one day when we’re gone we’re going to be asked by the Creator why didn’t we do that if we knew and understood.”

The lawsuit does not want the government to change the highway, Luke Goodrich, senior counsel at Becket, which represents the plaintiffs, told the Capital Chronicle.

“They’d like a declaration that the government violated the law, a vindication of their religious freedom rights and they would like restoration of the site so that they can resume their religious practices there,” Goodrich said.

The two tribal leaders, who were joined in their 2008 suit by the late Johnny Jackson, chief of the Cascade Tribe, and two land preservation nonprofits, claim the government violated religious freedom, environmental and land preservation acts. They asked the court to order the government to take remedial measures to restore the area.

But in 2018, Magistrate Judge Youlee Yim You in Portland ruled against the Native Americans, saying they had failed to show that the highway widening project prevented them from practicing their religion. She said they could still access other sacred sites in the area and had failed to show that they were being forced to abandon their beliefs.

Her findings were upheld by Chief U.S. District Court Judge Marco Hernandez, who dismissed their case earlier this year.

Slockish, Logan and two nonprofits – Cascade Geographic Society and the Mount Hood Sacred Lands Preservation Alliance – appealed.

They continue to maintain that the government violated the Religious Freedom Restoration Act, the Free Exercise Clause of the First Amendment of the Constitution and several environmental laws when it widened the highway, the law firm said.

Becket, based in Washington D.C., is a nonprofit that strives to protect the free expression of all faiths, according to its website. The Mount Hood case falls squarely in the firm’s wheelhouse, Goodrich said.

“The idea that the government can simply destroy long-standing Native American sacred sites is a gross affront to religious freedom for all Native Americans and for Americans who are not of indigenous descent,” Goodrich said.

The law firm said in its appeal that the case aims to stop the long history in the U.S. of “callously destroying Native American sites.”

“The question in this case is whether federal law allows that history to repeat itself today,” the brief said.

The site in contention, which covers less than an acre, was originally known as Ana Kwna Nchi Nchi Patal, or the “Place of Big, Big Trees.” It sat alongside a Native American trading route on the approach to Mount Hood. Tribes used the site as a religious campground and rest stop on the way toCelilo Falls. It said that the site was home to an altar of rocks and stones.

In the 1980s, the government proposed widening the highway from two to four lanes. Tribal leaders objected, citing graves and an altar in the area. The government widened the road but modified the original plan to avoid the site, the lawsuit said.

But in 2008 the highway administration added a left-turn lane to address successive accidents in the area that included one fatality.

The brief said the government could have modified that project to avoid any controversy.

“Defendants had numerous alternatives for adding a turn lane without harming plaintiffs’ sacred site,” the brief said. “But they ignored plaintiffs’ pleas for protection and chose the most destructive alternative.”

In court documents, the government denied that it had failed to consult tribal leaders about the second road work project. It also denied that “Native American villages, campsites and burial grounds exist within the project area.”

An archeologist who examined the area in the 1980s found a rock cluster he considered a potential gravesite. But the government said there was no evidence of human remains.

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