FROM SUBSTANTIAL BURDEN ON RELIGION TO DIMINISHED SPIRITUAL FULFILLMENT: THE SAN FRANCISCO PEAKS CASE AND THE MISUNDERSTANDING OF NATIVE AMERICAN RELIGION

In Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), the Ninth Circuit seated en banc found that federal approval of a plan by a ski resort to make artificial snow with treated sewage effluent on Arizona's San Francisco Peaks, a mountain massif held sacred by the Navajo, Hopi, and four other claimant tribes, did not violate their religious liberty under the Religious Freedom Restoration Act (RFRA). The court accepted numerous factual findings about sincere religious exercise, but found federal approval of the scheme did not constitute a “substantial burden” on religion; rather, it only “decreased spiritual fulfillment” of tribal members. Despite a spirited dissent, the Ninth Circuit narrowly interpreted RFRA's language of “substantial burden” by making reference to the Supreme Court's 1988 holding in Lyng v. Northwest Cemetery Protective Association, 485 U.S. 439 (1988). This article shows how conventional wisdom about individualistic, subjective, and protean “spirituality” and in particular about “Native American spirituality” equips the court to denature highly specific and collective religious claims about the mountain by plaintiff tribes, and in turn to naturalize those claims as merely spiritual. Misrecognition of Native religions as Native spirituality then troubles the substantial burden analysis. While Navajo Nation suggests courts may never fully understand Native claims to sacred sites, the Supreme Court's 2014 holding in Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751, 2759 (2014), opens the door to revisiting the interpretive posture spelled out in Navajo Nation, and the Ninth Circuit's interpretive approach to “substantial burden” bears revisiting.