Slockish v. U.S. Federal Highway Administration

A spiritual promise to protect sacred lands of Mount Hood

The Klickitat and Cascade Tribes of Yakama Nation have lived in the areas surrounding Mount Hood for centuries. It has been the center of tribal quests, spiritual rituals, and sacred burial ceremonies since long before this nation was founded.

As the hereditary chiefs, Wilbur Slockish and Johnny Jackson serve as spiritual leaders for their tribes. For more than 30 years they have taught the tribes’ traditional ways and organized religious ceremonies such as vision quests and water ceremonies along the mountain trails. As chiefs, one of the most crucial roles is to protect the welfare of the people and their lands. The protection of sacred sites allows tribal members to safely return to these areas to fish, hunt, gather food and medicine, and bury their dead to safeguard the individual’s spiritual journey home.

Government bulldozes sacred lands

In 2006, the U.S. Federal Highway Administration announced a project to expand U.S. Highway 26, which is the main highway linking Portland to Mount Hood. The tribal chiefs alerted government officials to the importance of the burial grounds, as tribal members had done in the past when the government announced expansion plans. Yet, this time, the government refused to listen.

In 2008, in direct violation of a 1987 Highway 26 Widening Agreement, government officials bulldozed the ancestral burial grounds. Although the government left the other side of the highway untouched—protecting nearby wetlands and a tattoo parlor—it buried the Natives’ ancestral grave sites, destroyed a sacred stone altar, and removed safe access to the sites.

Defending the religious rights of Native Americans

In October 2008, Chiefs Slockish and Jackson, and tribal elder Carol Logan, together with the Cascade Geographic Society and the Mount Hood Sacred Lands Preservation Alliance, sued the government, citing federal laws including the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the U.S. Constitution. After two-and-a-half years of negotiations between the tribal members and the government, negotiations failed.

In 2015, the tribe members returned to court to seek remedies for the destruction of their lands and ensure they are consulted before the government orders any future construction in the area. In October 2017, an important hearing was held in which the tribe members asked the court to find that the destruction of their sacred site substantially burdened their religious practices. Sadly, the tribes were denied justice when the judge ruled that the government was free to bulldoze sacred Native American burial grounds and destroy sacred artifacts without violating RFRA.

In December 2018, the tribe members asked the court for relief based on their claims that the destruction of their sacred site violated environmental laws. Following a magistrate judge’s preliminary recommendation against the tribe members in April 2020, the district court denied relief to the tribe members in a 3-page order on February 21, 2021. On November 24, the Ninth Circuit ruled that the government will not be held responsible for its destruction of the sacred site. The tribe members are now pursuing further appeals.

The tribe members are represented by Becket together with Oregon City attorney James Nicita and Keith Talbot of the Seattle-based law firm, Patterson Buchanan Forbes & Leitch.

Importance to Religious Liberty

  • Individual freedom: Religious liberty includes the right to worship how and where one’s faith dictates. Government should not restrict the ability of individuals or groups to access religious sites, especially when there is an alternative way for the government to achieve its goal.
  • Religious liberty for Native Americans: Whether they are directly targeted or indirectly affected by government actions, minority religious groups are particularly vulnerable to government violations of their religious liberty. Actively defending religious liberty for Native Americans strengthens religious liberty for people of all faiths.

Matal v. Tam

What do a Jewish-owned clothing line called “Heeb,” an Asian American rock band called “The Slants,” and the Washington Redskins have in common? The U.S. government says they are too “disparaging” to receive trademark protection.

In 2011 Simon Tam tried to register the name of his rock band, The Slants. The government rejected his application because “Slant” disparages Asian-Americans (watch his TedTalk, “Give Racism a Chance”). Tam, who is Asian-American, challenged the decision in court and won. The government then appealed to the Supreme Court, which heard oral argument in January 2017.

For more than a decade, Becket and the federal government have fought laws banning “insulting” and “defaming” religious speech at the United Nations and in places like Pakistan, Indonesia, and Australia. These laws are widely abused to target religious minorities like Asia Bibi, the Pakistani woman sitting on death row for allegedly insulting the Prophet Mohammed. Becket filed a brief in the Supreme Court urging the government to stop excluding allegedly “disparaging” names from the federal trademark system. In December 2016, Becket told the Supreme Court that the U.S. government should practice at home what it preaches abroad: free speech for all, even speech that offends.

In June 2017 the Supreme Court ruled unanimously 8-0 championing the band’s free speech.

Tam was represented by Eugene Volokh and Stuart Banner of the UCLA School of Law Supreme Court Clinic, and John Connell of Archer & Grenier, P.C.