Tribal elders Wilbur Slockish and Carol Logan say a forested site off U.S. Highway 26 on Mount Hood was like a church without walls.
They鈥檝e told judges in district and circuit courts that they would visit the sacred burial ground to remember their ancestors and pray to their creator near a stone altar surrounded by old growth trees.
The site, known as Ana Kwna Nchi Nchi Patat, which means 鈥淧lace of Big Big Trees,鈥� was destroyed by a highway expansion project in 2008.
Slockish, the hereditary chief of the Confederated Tribes and Bands of the Yakama Nation, and Logan, a member of the Confederated Tribes of Grand Ronde, sued the agencies involved in the highway project, saying the bulldozing of the site violated their rights to religious freedom.
But dismissed their case, so to the U.S. Supreme Court.
In filed this month, the tribal members say they told state and federal transportation officials about the religious value of the site before the agencies started building a left-turn lane off the highway about 13 miles from Government Camp.
The highway expansion happened anyway, removing trees and a stone altar, and covering the burial grounds with a large embankment. The U.S. Department of Transportation, Bureau of Land Management and Oregon Department of Transportation said the turn lane was needed for safety following nearby traffic accidents, one of which was fatal.
Slockish and Logan took the agencies to court, arguing the destruction of the site violated their rights under the Religious Freedom Restoration Act, which prohibits state and federal agencies from burdening a person鈥檚 exercise of religion, and the Free Exercise Clause of the Constitution, which protects the right to practice religion.
They want the federal agencies to remove the embankment, replant trees and allow the stone altar to be reconstructed.
鈥淲e鈥檝e always taken care of this land, taken care of our burial sites, because that鈥檚 what we were charged with by our creator 鈥� to make sure they weren鈥檛 disturbed,鈥� Slockish said in a . 鈥淭o me, it鈥檚 like them going into the Catholic church or the Protestant church and cutting their altar.鈥�
Luke Goodrich, an attorney with the Becket Fund for Religious Liberty, is representing the tribal members, as well as Cascade Geographic Society and Mount Hood Sacred Lands Preservation Alliance, as plaintiffs in the case.
He said the case was put on hold for years while the parties tried to negotiate a settlement, but that effort stalled.
After the in 2008, a district court decided that the highway project did not put a meaningful burden on the tribal members鈥� religious freedom. That ruling was appealed, and as moot after finding the Oregon Department of Transportation would be responsible for restoring the site but had been dismissed as a defendant in 2012.
Appealing the case to the federal Supreme Court is a last resort for tribal members who want to see the site restored, Goodrich said.
鈥淩eligious freedom in this country means the government tries to do whatever it can to refrain from prohibiting your religious practices,鈥� he said. 鈥淭he question in this case is will Native Americans receive the same kind of legal protection for their religious practices that everybody else in the country already gets.鈥�
The U.S. Department of Transportation and the Oregon Department of Transportation declined to comment.
The Supreme Court will decide by January whether it will hear the case.
OPB reporter Bradley Parks contributed to this report.
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