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 did not give that same courtesy when razing Native American burial grounds.
A federal judge seemed skeptical Monday about the government’s argument that it was within its rights to destroy burial grounds and a ceremonial site sacred to members of the Klickitat and Cascade Native American tribes to widen a highway.
In 2008, the government widened U.S. Highway 26, which runs from the Pacific Ocean over Mount 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 Klickitat and Cascade Indian tribes. 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.
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 a wetland area and even for a tattoo parlor.
The tribes’ attorney, Stephanie Barclay with the Becket Fund for Religious Liberty, said in court Monday that the government displayed “callous disregard” for the tribe’s religious rights under the Religious Freedom Restoration Act. Barclay said the incident easily crossed the bar required under the law to show that the government had imposed a “substantial burden” on the tribes’ ability to practice their religion.
“The government says the tribe can still access their sacred site,” Barclay said at the hearing. “That is like telling Christians they can still access a church where the walls have been knocked down and the remainder covered in dirt.”
But the government filed a motion to dismiss the case, claiming that it is legally allowed to do whatever it wants on land it owns.
“Many cases show that the federal government’s use of its own property, as a legal matter, cannot constitute a substantial burden,” U.S. Attorney Reuben Schifman told U.S. Magistrate Judge Youlee Yim You.
If You finds for the tribes on the substantial burden question, she will next determine whether the government could have completed its project without disturbing the sacred site.
Barclay called the government’s case on that point “weak,” since it had found ways to avoid harming the wetlands and the tattoo parlor.
She said the tribes aren’t asking for money. Instead, they want the return of the rocks that made up their altar, replanting of trees and medicinal plants and an interpretive sign describing the significance of the spot.
Schifman told Judge You those remedies are 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.
“Plaintiffs want an altar erected where ODOT may be mowing or otherwise landscaping,” he complained.
Judge You frowned.
“So you’re saying it could be a problem because it could interfere with ODOT’s potential landscaping of the area?” she asked, her incredulous tone drawing laughter from the packed gallery.
After the hearing, Carol Logan, an elder with the Confederated Tribes of Grand Ronde, said 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 after the hearing. “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.”
Watch | Government bulldozes sacred Native burial sites
Top photo | Johnny Jackson, left, and Carol Logan, both plaintiffs in the case, overlook and area near the tribal burial ground that was bulldozed when the federal government widened U.S. Highway 26.