Recognition of Native American sacred sites in the United States

United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples, adopted by the United Nations in 2007, emphasizes the right of Indigenous peoples to protect sacred sites and their religious practices. Articles 11, 12, and 25 of the Declaration specifically address these rights. Article 11 states that Indigenous peoples have the right to practise and revitalize their cultural traditions and customs, including the right to maintain, protect and develop past, present and future manifestations of their cultures, such as archaeological and historical sites.

It also requires states to provide redress through effective mechanisms, which may include restitution, developed in conjunction with Indigenous peoples, for cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent. Article 12 affirms the right to manifest, practise, develop and teach spiritual and religious traditions, customs and ceremonies; to maintain, protect, and have access in privacy to religious and cultural sites; to use and control ceremonial objects; and to repatriate human remains.

Article 25 recognizes the right to maintain and strengthen a distinctive spiritual relationship with traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources, and to uphold responsibilities to future generations.

Applying the United States Legal System

Indigenous peoples in the United States have claimed a right to protect their sacred sites based on religious freedom, with the First Amendment’s Religion Clauses forming the core of the legal debate. The Free Exercise Clause and the Establishment Clause together bar the federal government from creating an official religion by enforcing a separation of church and state. Yet the Establishment Clause also complicates the government’s ability to safeguard specific religious practices or liberties.

In Sherbert v. Verner (1963), the Supreme Court ruled that a plaintiff must first prove the government placed a burden on their free exercise of religion; then the government must show its action serves a compelling state interest. In Wisconsin v. Yoder (1972), the Court applied that standard to overturn a compulsory school attendance law for Amish families. The key Supreme Court case on Indigenous sacred sites under the Free Exercise Clause is Lyng v. Northwest Indian Cemetery Protective Ass'n (1988).

This case concerned a federal proposal to build a road and allow timber cutting in a national forest in northern California, an area used by the Yurok, Karok, and Tolowa tribes for religious ceremonies. A 1979 Forest Service study had noted the site’s importance to Indigenous religious practice, stating that privacy, silence, and an undisturbed natural setting were essential for those practices. In a 5–3 decision, the Court sided with the government.

Writing for the majority, Justice O’Connor argued that the Free Exercise Clause is only broken when the government forces individuals to act against their religious beliefs or penalizes religious activity by denying someone an equal share of rights, benefits, or privileges that other citizens enjoy. Since the government did not bar the tribes from entering the land or punish their religious practices, the Court found no constitutional violation. The majority did acknowledge that the construction could have devastating effects on traditional Indian religious practices and could virtually destroy them.

Glen Cove (Ssogoréate) Sacred Burial Sites

For over 3,500 years, the site known as Glen Cove, Sogorea Te, or Ssogoréate in Vallejo, California, has been a ceremonial and burial ground for the Ohlone, Patwin, Miwok, Yokuts, and Wappo tribes. Starting in 1988, the Greater Vallejo Recreation District and the City of Vallejo planned to develop the area into a public park, a project that would involve moving burials and sacred objects. The affected tribes opposed this, arguing it violated their human and religious rights and that the site was one of the few remaining pieces of their heritage on that land.

In response, the Protect Glen Cove Committee and the Board of Directors of Sacred Sites Protection called for Indigenous activists to gather there. From April 14, 2011, tribes and their supporters occupied the site, holding daily spiritual gatherings and ceremonies. After 98 days of this occupation, on July 19, 2011, the Committee to Protect Glen Cove announced that the tribes had gained control over the land. A cultural easement and settlement agreement was then established by the Yocha Dehe and Cortina tribes, giving them legal oversight over all activities at the sacred burial grounds of Sogoreate/Glen Cove.