PORTLAND, Ore. — Government lawyers asked a federal judge Monday to dismiss a lawsuit filed by tribal elders who say a sacred site was destroyed to expand a highway near Oregon’s Mount Hood.
U.S. Justice Department attorney Ben Schifman said in a telephone hearing that the elders were not substantially burdened by the expansion of U.S. 26 and lacked standing to sue.
The elders from Yakama Nation and the Confederated Tribes of Grande Ronde claim the Federal Highway Administration violated the Religious Freedom Restoration Act. Their attorney Stephanie Barclay said the government in 2008 could have widened the road without bulldozing a site that included a stone altar and medicinal plants.
Rather than money, the Native Americans are asking for a historical marker, a rebuilt altar and for the planting of new trees and plants.
“Even more importantly, one of the things the plaintiffs are asking for in this case is simply for the judge to say what the federal government did was against the law,” Barclay said after the hearing. “The federal government does not get to destroy sacred sites of Native Americans with impunity.”
Judge Youlee Yim You will decide whether the case filed nine years ago moves forward. She did not indicate when she will rule.
The Oregon Department of Transportation widened the highway after receiving complaints about a dangerous stretch east of Portland. Residents believed the addition of a center-turn lane would increase safety.
Schifman said the Religious Freedom Restoration Act does not apply in this case because the elders have not been denied a public benefit or forced to violate their religion. He said if every individual were to have a religious veto over the use of public land, nearly all projects would grind to a halt.
Schifman noted that the plaintiffs have access to visit the roadside area.
“No one has been threatened by federal law enforcement officers with any kind of trespass or any criminal penalty for visiting the site,” he said.
Barclay said access is useless when the elements that made it special are gone: “It would be like telling Christians that they can still access a church when the walls have been knocked down and the remainder has been covered in a mound of dirt.”
Though the hearing was conducted by telephone, a sizable group of Native Americans listened in at the federal courthouse in downtown Portland.
Plaintiff Carol Logan, from the Confederated Tribes of Grande Ronde, said she worshipped for decades at the site known as Ana Kwna Nchi nchi Patat, or the “Place of Big Big Trees.”
“This is where our ancestors rest, and yet they rip the soil apart like an open wound,” she said.