Professor Emeritus JeDon Emenhiser, Department of Politics, Humboldt State University
Contents: Introduction | Administration | Adjudication | International Law | Legislation | Speculation
| Commentary | Conclusion | Case Study | Selected Bibliography | Acknowledgments | Progeny | Site Map
Brush Dance Song
(Source: Northern California Indian Development Council)
This case involves the enduring civic problem. How can persons with different social values live together? Further, it raises the perennial political question: Should a majority have power to coerce minorities to act against their conscience?
During the 1970s and 80s a dispute arose between a majority, the people of the United States represented by the Forest Service, and a minority, members from the Karuk, Tolowa, and Yurok Indian tribes in a remote and rugged area of northern California.
Specifically, the controversy posed the following questions: (1) Should the U.S. Forest Service have the power to build a road and to permit timber harvesting on the Six Rivers National Forest in the Siskiyou Mountains 17 miles east of Klamath and 15 north of Weitchpec? (2) Or should a religious community of some 4,500 persons and approximately 140 leaders continue to use the area, at the core of their beliefs, for meditation and preparation for rituals, which demand solitude, silence, and undisturbed natural surroundings over some 13,500 acres of public land?
The Forest Service claimed the road was significant for the development of timber harvesting, recreation, maintenance, and fire control and that it did not physically prevent religious conduct in the area.
After a number of individuals were unable to block the project in court, a non-profit group, the Northwest Indian Cemetery Protective Association, which originally had been organized to protect burial sites, secured the assistance of California Indian Legal Services and filed suit for an injunction. They claimed that constructing a six-mile, two-lane, paved segment of a 55-mile road between the towns of Gasquet and Orleans (the G-O Road) and implementing a timber management plan in the sacred high country would interfere with religious practices that native people had conducted for centuries.
The conflict involved all three branches of the United States government-- administrative, legislative, and judicial--and was even appealed to an international body.
The Forest Service, as a division of the U.S. Department of Agriculture, is responsible for administering the National Forests for commercial and recreational purposes. In effect, it attempts to assist the timber industry, including building logging roads, while protecting the environment and archeological and historical sites. Planning for a G-O Road began in 1963.
Blue Creek Unit Management Plan (1972)
As early as 1963 the Forest Service commissioned a civil engineer to prepare a "G-O Planning Study." In 1972 its Management Plan called for considering various ways to increase access to the Blue Creek Unit of the Six Rivers National Forest in order to permit logging, to provide recreation, and to control fires. During 1974 and 1975 the Service circulated a Draft Environmental Impact Statement of its proposed action. Donald S. Miller, the Forest Service Regional Archeologist, concluded that "there will be no adverse effects on the . . . properties as a direct or indirect result of any Forest Service undertaking within the Eight Mile/Blue Creek Planning Unit." After extensive administrative review, including consideration of other routes and appeals by the Sierra Club and a group of Native Americans during 1976, the Secretary of Agriculture supported the Chief of the Forest Service in his affirmation of the decision of the Regional Forester favoring the Chimney Rock Corridor. In 1977 the Forest Service issued a second DEIS for construction of the G-O Road.
Theodoratus Report (1979)
After discussing the second draft statement with various groups, the Forest Service hired an external, professional anthropological consulting firm, Theodoratus Cultural Research, to estimate the effect of building the G-O Road and harvesting timber in the Chimney Rock Section of the Six Rivers National Forest.
Theodoratus and her associates reported that a cultural conflict existed between Indian religious activity and Forest Service management practices. They concluded that "intrusions on the sanctity of the Blue Creek high country are . . . potentially destructive of the very core of Northwest [Indian] religious beliefs and practices." They recommended against completing the G-O Road.
National Register of Historic Places (1981)
On May 21, 1981, Keeper of the National Register, Carol D. Shull, declared the Helkau District of the Six Rivers Forest comprising 13,500 acres of the high country eligible for the National Register of Historic Places. Shortly thereafter, the national Advisory Council on Historic Preservation held field hearings, formally criticized the Forest Service's "segmented planning" that led to their G-O Road decision, and recommended relocating the route. On January 29, 1982, Advisory Council Chairman Alexander Aldrich wrote Secretary of Agriculture John R. Block: ". . . it is fundamentally wrong to so seriously impact an area held sacred by a group of American citizens, if any feasible alternatives exist."
Environmental Impact Statement (1982)
Despite the Theodoratus Report and the Advisory Council's criticism, on March 4, 1982, Regional Forester Zane Smith issued a Final Environmental Impact Statement to construct the road along a revised Chimney Rock route and permit timbering. The Forest Service claimed it could mitigate the adverse impact on the free exercise of Indian religion by not directly building the road over any archaeological areas and protecting specific religious sites from logging activity.
When administrative relief failed, members of the Indian community took their case to the judiciary, first to the U.S. District Court, then to the Court of Appeals, and finally to the U.S. Supreme Court.
District Court Case (1983)
In 1983 the Cemetery Protective Association petitioned the U.S. District Court for an injunction against R. Max Peterson, Chief of the U.S. Forest Service, to halt road building and timbering in the high country. After hearing the case on its merits, including testimony by members of the Indian community, U.S. District Court Judge Stanley A. Weigel, in effect, adopted the conclusion of the Theodoratus Report that the high country was sacred ground used for religious purposes. On May 25, 1983, he issued a permanent injunction against building the road and implementing the timber management plan. Peterson appealed the District Court injunction to the U.S. Court of Appeals for the Ninth Circuit.
Appellate Court Decision (1986)
In 1986 a three-judge panel of the Court of Appeals, Ninth Circuit, led by Judge William C. Canby, affirmed the District Court's injunction on grounds that it denied free exercise of religion to the native people.
The Supreme Court
Subsequently, Richard E. Lyng, Secretary of Agriculture and ultimate supervisor of the Forest Service, requested the U.S. Supreme Court to issue a writ of certiorari to the Court of Appeals so the case could be heard at the highest level. The Court issued the writ on May 4, 1987. Attorneys for petitioner Lyng and for the respondents Northwest Indian Cemetery Protective Association submitted written briefs to the Supreme Court in behalf of their respective clients.
The written briefs for each side argued that various cases previously decided by the Supreme Court and Courts of Appeals favored the position of their client.
On November 30, 1987, Attorneys for each of the parties presented a 30-minute oral argument before the Supreme Court.
The Supreme Court Opinions
On April 19, 1988, Justice Sandra Day O'Connor delivered the opinion of the Court in favor of Lyng in which Chief Justice Rehnquist and Justices White, Stevens, and Scalia joined. Justice Brennan filed a dissenting opinion joined by Justices Marshall and Blackmun. Justice Kennedy, who was not a member of the Court until February, 1988, did not participate in the case. Despite a vigorous dissent by Justice Brennan, the Court ruled 5-3 that the Free Exercise Clause does not prohibit the Forest Service from permitting logging or constructing a paved road in the Chimney Rock area. The decision of the Court of Appeals was reversed and the case was remanded to have the injunction reconsidered by the lower court.
A Subsequent Case
After the petitioners lost their case in the Supreme Court, another case involving Indian religious practice was decided in favor of majority power against minority rights.
In Employment Div., Oregon Dept. of Human Resources v. Smith, 494 U.S. 872 (1990) the Court upheld Oregon's refusal to grant unemployment compensation to two men who were fired by a private drug rehabilitation organization for work-related "misconduct" after they had ingested peyote during a Native American Church ceremony. Speaking for a 5-4 decision, Justice Scalia ruled that a generally applicable criminal law proscribing peyote was valid even though it interfered with the religious activity of members of the Native American Church. In her concurrence Justice O'Connor voted with the majority but argued against Scalia's failure to employ a balancing test to scrutinize the state law. Although she did not use strict scrutiny in Lyng, she apparently saw a difference between the government's constructing a road and criminalizing drug use.
In 1993 Congress attempted to override Smith by passing the Religious Freedom Restoration Act, only to have the Supreme Court declare its enforcement process unconstitutional in Boerne v. Flores (1997). Congress passed RFRA under authority of Section 5 of the 14th Amendment, which allows it to enforce the Amendment's Due Process Clause. Attorneys for Archbishop Flores argued that the City of Boerne's historic preservation ordinance could not prevent the bishop from remodeling his church. But a 6-3 Court led by Chief Justice Rehnquist disagreed. The opinion states that Congress exceeded its authority, in part, by telling the Court that it must use strict scrutiny in such cases as Smith.
After the Court rejected the case on First Amendment grounds, on January 2, 1990, the Northwest Indian Cemetery Protective Association and three individuals appealed to the Inter-American Commission on Human Rights of the Organization of American States.
They stated that legal remedies under U.S. law had been exhausted and requested that the OAS intervene to protect their basic human rights. Their petition was supported by a formal resolution from the Tolowa Nation Tribal Council. Further, they cited provisions in two international documents.
American Declaration of the Rights and Duties of Man, Article III: Every person has the right freely to profess a religious faith, and to manifest and practice it both in public and in private.
American Convention on Human Rights, Article 12: Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain . . . one's religion or beliefs....
Eleven months later, on November 27, 1990, the petitioners wrote to OAS withdrawing their request. They said, Congress has "passed certain legislation that prohibits construction of the G-O Road." Whether the petition to OAS, without any formal action of the body was effective, is a matter of conjecture. If members of Congress and Forest Service administrators were aware of the matter, they could not entirely ignore the potential pressure that might come from an international incident.
Indian people were not without friends in Congress. When administrative and judicial relief failed, some members of Congress were willing to help with legislation.
American Indian Religious Freedom Act (1978)
According to the law's sponsor, Representative Morris Udall (D-AZ), when AIRFA was passed in 1978 it had "no teeth in it." It did not guarantee any rights to Indian people. Likewise, the 1994 Amendment and the 1996 Executive Order 13007 explicitly state that they do not create any right or trust responsibility.
California Wilderness Act (1984)
While the Court of Appeal was reviewing the case, Congress passed the California Wilderness Act (PL 98-425, 98 Stat. 1619), designating the Chimney Rock region as part of the Siskiyou Wilderness Area. Although the Act exempted the G-O Road strip from the area, the wilderness designation excluded logging in much of the sacred high country, which removed the main purpose for the road.
Smith River National Recreation Area (1990)
Subsequently, lobbying efforts in Congress succeeded in establishing a new designation for the area, preserving most of the natural surroundings in the region.
If Indian law or Indian political power had been as well developed in 1980 as it is today, the issue might have been settled another way.
Indian Law. If the issue were to go to court today, the case might be argued differently. First of all the litigants might be tribes rather than an association of individuals. Second, instead of using the First Amendment with its right to be free from congressional restraint in the exercise of one's religion, the litigants might use arguments based on a trust relationship between Indian people and the national government or on the notion of tribal sovereignty. In other words, rather than placing Indian religion within the constitutional protection of minority rights, perhaps, today one would appeal to special legal relationships between the national government and Indian tribes and people.
Indian Political Power. If Indian ability to influence elections and legislators had been as strong then as it may be now, the matter might have been fought in the political arena, with groups making campaign contributions, consultants designing advertising, and lobbyists pressuring members of Congress.
Rational Basis or Strict Scrutiny
The Lyng Court did not review the Forest Service action with exacting scrutiny as is often done in cases involving fundamental freedoms, insular minorities, and access to the political process. Although the lower courts applied heightened scrutiny in this case, the Supreme Court did not.
Clash of Cultures
As recognized early in the Theodoratus Report (1979), this was a clash of cultures, and the law and politics were destined to favor the dominant culture. If culture is defined as the systems of ideas that people use to make sense of themselves and the world, it is plain to see that the American Indian people in Northwest California and the Forest Service were from different cultures.
Thus the enduring question with which we began may be even broader. Not only must we ask how can people who value things differently live together, but how can those who give things entirely different meaning and organize their lives under completely different perspectives live in a complex interdependent relationship.
Court action was only one effort in resolving the G-O Road controversy. Ultimately, the determination not to build the G-O Road was administrative and legislative, by the Forest Service and Congress. It was not, in the end, a judicial decision. But the threat of litigation may have contributed to action by the other branches of government.
While the Supreme Court confirmed the power of the Forest Service to implement its management plan on government-owned land, the story did not end there. First, Congress passed the California Wilderness Act making logging and road-building, generally, in the area illegal, although providing an exemption for the proposed G-O Road corridor. Then, Congress established the Smith River Recreation Area, which preserved the natural diversity of the entire area, including the unfinished portion of the proposed G-O Road.
The majority confirmed its power to build a road and cut trees on public land whenever it chose to do so. But, in effect, by passing the Wilderness Act and establishing the Recreation Area the majority said we do not choose to do so at this time. Further, the Forest Service declined to press the matter further, especially when it realized the potential threat of international embarrassment. The minority maintained the sacredness of the high country, not by right but through majority benevolence or pragmatic politics.
You may access guides to help teach the G-O Road Controversy by clicking on A Peculiar Relationship and The G-O Road Case.
Special thanks to the following:
American Indian Civics Project, Humboldt State University
Joseph Dupris, Assistant Professor, Department of Native American Studies
Lawrence Fox, III, Professor, Department of Forestry
Laura Lee George, Director, Indian Teacher & Educational Personnel Program
Linda Gillette, California Indian Legal Services
Van Hare, Graduate Student, Special Analysis Laboratory
William Herbrechtsmeier, Associate Professor, Department of Religion
John Ligda, Instructional Technology Center
The Honorable Marilyn Miles, Judge, Superior Court, Humboldt County
Margaret Pearce, Assistant Professor, Department of Geography
Julie Raniri, U.S. Forest Service
Lois Risling, Chair, Center for Indian Community Development
Thomas G. Voorhees, Courseware Development Center
Kenneth Wilson, U.S. Forest Service
2005. Emenhiser, JeDon A."The G-O Road," in Bron Taylor, ed. Encylopedia of Religion and Nature, London and New York: Continuum.
Citation on Sacred Land Website